Eastern Region
The Regional Standard
TERMS AND CONDITIONS OF CONTRACT
For adult social care and housing related support
services in the East of England
Adopted: 2015
 Councils in the East of
England with Social Services
Responsibilities
 Bedford Borough Council
 Central Bedfordshire Council
 Cambridgeshire County
Council
 Essex County Council
 Hertfordshire County Council
 Luton Borough Council
 Norfolk County Council
 Peterborough City Council
 Southend-on-Sea Borough
Council
 Suffolk County Council
 Thurrock Borough Council
This Document has been approved by the Directors of Adult Social Services
- Eastern Branch. Please email any queries to guy.pettengell@hertfordshire.gov.uk
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Suffolk County Council
Adult and Community Services
CONTRACT FOR THE PROVISION OF
Title of Contract
CONTRACT REF: Add Ref
BETWEEN
SUFFOLK COUNTY COUNCIL
AND
Providers Name
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PROVISION OF Add Title of Contract
CONTRACT REF: Add Ref
1. FORM OF AGREEMENT
THIS AGREEMENT dated the
2015
Add Date
day of
l
is made between
Suffolk County Council (“Council”) of:
Endeavour House
Russell Road
Ipswich
IP1 2BX
And
Name of Company (Company Registration Number [
]) situate at [
]
[Insert Service Providers registered address. Please ensure that you check companies house records against company
details provided in the Tender Response Document and address any discrepancies before contract award]], (“Service
Provider”)
together referred to as “Parties”
IT IS AGREED THAT:
1.
This Form of Agreement with the following attached documents will together form the Contract documents:
Conditions of Contract
Schedule 1 Specification
Schedule 2 Performance Monitoring/KPI’s
Schedule 3 Change Control Procedure
Schedule 4 The Council’s Policy Statements
Schedule 5 NOT USED
Schedule 6 NOT USED
Schedule 7 NOT USED
Schedule 8 NOT USED
Schedule 9 NOT USED
Schedule 10 Safeguarding Policy and Disclosure and Barring Risk Assessment Form]
Schedule 11 NOT USED
Schedule 12 NOT USED
Schedule 13 NOT USED
Schedule 14 NOT USED
Schedule 15 Process for payment of the Contract Price
2.
The Contract effected by the signing/execution (as appropriate) of this Form of Agreement constitutes the entire
agreement between the Parties relating to the subject matter of the Contract and supersedes all prior contracts,
negotiations, representations or understandings whether written or oral.
3.
This Contract shall commence on the Start Date and shall continue for a period of 18 months thereafter until
End Date unless terminated in accordance with the provisions of this Contract by giving at least three (3)
months’ prior notice in writing.
4.
The Service Provider shall provide the Services in accordance with the provisions of the Contract and to
the satisfaction of the Council and the Council shall make to the Service Provider the payments provided by the
Contract for Services provided in accordance with the Contract.
IN WITNESS whereof the parties have Executed this Agreement the day and year first before written:
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IN WITNESS whereof the parties have signed this Agreement the day and year first before written:
SIGNED ON BEHALF OF
[NAME OF LA] by
………………………………………
Authorised Signatory
……………………………………..
Authorised Signatory
SIGNED ON BEHALF OF
[please insert name of Service Provider]
acting by:
…………………………………….
Director
…………………………………….
Director / Company Secretary*
[*Please delete as appropriate]
or
SIGNED ON BEHALF OF
[please insert name of Service Provider ]
acting by:
…………………………………….
Director
in the presence of -:
Witness Signature:
Witness Name:
Witness Address:
Witness Occupation:
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IN WITNESS whereof the parties have Executed this Agreement the day and year first before written:
THE COMMON SEAL OF
[NAME OF LA] was hereunto affixed in the presence of:
………………………………………
Chief Legal Officer
EXECUTED AS A DEED by
[please insert name of Service Provider]
acting by:
…………………………………….
Director
…………………………………….
Director / Company Secretary*
[*Delete as appropriate]
or
EXECUTED AS A DEED by
[please insert name of Service Provider]
acting by:
…………………………………….
Director
in the presence of -:
Witness Signature:
Witness Name:
Witness Address:
Witness Occupation:
or
THE COMMON SEAL OF
[please insert name of Service Provider]
was hereunto affixed in the presence of:
………………………………………
Authorised Signatory
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Suffolk County Council
Adult and Community Services
THE PROVISION OF Contract Name
CONTRACT REF: Add Ref
CONTRACT DOCUMENT
CONDITIONS OF CONTRACT
A.
DEFINITIONS AND INTERPRETATION
1.
Definitions
2.
Interpretation of this Contract
B.
THE SERVICES AND PERSONNEL
3.
Duration of Contract
4.
The Services
5.
Service Provider’s Warranty, Responsibility and Knowledge
6.
The Council’s Personnel and the Staff
7.
Offer of Employment
C.
FINANCIAL ARRANGEMENTS
8.
Contract Price and Payment
9.
Recovery of Sums Due
10. Value Added Tax
11. Performance Bond and Parent Company Guarantee
12. Euro
D.
CONTROL OF THIS CONTRACT
13. Assignment and Sub-Contracting
14. Variations and Change Control
15. Performance Monitoring and Contract Review
16. Intellectual Property Rights
17. Audit Rights
18. Records
19. Publicity
E.
FREEDOM OF INFORMATION, CONFIDENTIALITY AND DATA
PROTECTION
20. Freedom of Information
21. Confidentiality
22. Data Protection
F.
ADDITIONAL STATUTORY OBLIGATIONS AND REGULATIONS
23. Bribery Corruption and Fraud
24. Re-Use of Public Sector Information
25. Equal Opportunities
26. Health and Safety
27. Whistleblowing
28. Observance of Statutory Requirements
29. Environmental Requirements
30. Human Rights Act 1998
31. Change in Law
32. Transfer of Undertakings
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G.
INSURANCE AND INDEMNITY
33. Insurance
34. Indemnity
H.
REMEDIES FOR POOR PERFORMANCE AND TERMINATION
35. Force Majeure
36. Industrial Action
37. Business Continuity
38. Complaints
39. Remedies for Poor Performance
40. Dispute Resolution
41. Termination
42. Consequences of Termination
43. Exit and Handover Arrangements
I.
GENERAL PROVISIONS
44. Notices
45. Legal Proceedings
46. Local Government Ombudsman
47. Agency
48. Entire Agreement
49. Conflict of Interest
50. Use of the Council’s Crest or Logo
51. Lien or Encumbrance
52. Severance
53. Waiver
54. The Contract (Rights of Third Parties) Act 1999
55. Law and Jurisdiction
J.
CONTRACT SPECIFIC CONDITIONS
56. Use or Occupation of Council Premises
57. Service Provider’s Equipment and Council’s Equipment
58. Liquidated Damages
Schedule 1 Specification
Schedule 2 Performance Monitoring and KPI’s
Schedule 3 Change Control Procedure
Schedule 4 NOT USED
Schedule 5 NOT USED
Schedule 6 NOT USED
Schedule 7 NOT USED
Schedule 8 NOT USED
Schedule 9 NOT USED
Schedule 10 Discosure and Barring Services (DBS) Risk Assessment Form
Schedule 11 NOT USED
Schedule 12 NOT USED
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Schedule 13 NOT USED
Schedule 14 NOT USED
Schedule 15 Process for payment of the Contract Price
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THE PROVISION OF Contract Name
CONTRACT REF: Ref No.
CONDITIONS OF CONTRACT
A.
GENERAL PROVISIONS
1.
DEFINITIONS
“Affected Party”
means a party affected by a Force Majeure Event;
“Approval”
means the written consent of the Contract Manager or any
person authorised by the Contract Manager. (“Approved” or
“Approve” shall be construed accordingly);
“Authorisation”
means an authorisation given by the Council after
completion of the statutory assessment process in relation
to a Service User, giving lawful authority to deprive a person
of their liberty;
“Basic Disclosure”
means a Basic Disclosure carried out through Disclosure
Scotland, which is required where a Service Provider is
engaged in a position of trust but is not eligible for a
Standard Disclosure check, Enhanced with Barred List
Check or Enhanced without Barred List Check;
“Best Value Duty”
means the duty imposed on the Council by Part 1 of the
Local Government Act 1999 (“1999 Act”) (as may be
amended from time to time) and under which the Council is
under a statutory duty to continuously improve the way its
functions are exercised having regard to a combination of
economy efficiency and effectiveness and to the guidance
issued from time to time by the Secretary of State, the Audit
Commission and the Chartered Institute of Public Finance
and Accountancy pursuant to or in connection with Part 1 of
the 1999 Act and any subsequent legislation;
“Bribery Act”
means the Bribery Act 2010 and any subordinate legislation
made under that Act from time to time together with any
guidance or codes of practice issued by the relevant
government department concerning the legislation;
“Business Continuity Plan”
means a plan agreed between the Parties to provide effective
prevention and recovery in connection with the Services if the
Services are exposed to internal or external threats;
“Calendar Days”
means a day reckoned from midnight to midnight and shall
include weekends and bank holidays in England and Wales;
“Change Control Procedure”
means the change control procedure set out in Clause 14
(Variations and Change Control) and Schedule 3 (Change
Control Procedure);
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“Change in Law”
means the coming into effect after the Commencement
Date of this Contract of:
(a)
(b)
(c)
Legislation, other than any legislation which on the
Commencement Date of this Contract has been
published:
i. In a Bill as part of a Government Departmental
Consultation Paper
ii. In a Bill
iii. In a draft statutory instrument or
iv. Published as a proposal in the Official Journal of
the European Communities
Any legal guidance; or
Any applicable judgment of a relevant Court of law
which changes or establishes a binding precedent;
“Charging Period”
means the one month period when an invoice is required to
be submitted by the Service Provider to the Council;
“Clause”
means the Clause(s) contained within the Conditions of
Contract;
“Commencement Date”
means the date specified in Clause 3.1 of the Contract;
“Conditions of Contract”
means these terms and conditions of Contract referred to as
“Clauses” and/or any variation duly agreed in writing in
accordance with Clause 14 (Variations and Change
Control);
“Confidential Information”
means any information which has been designated as
confidential by either Party in writing or that ought to be
considered as confidential (however it is conveyed or on
whatever media it is stored) including information the
disclosure of which would, or would be likely to, prejudice
the commercial interests of any person, trade secrets,
Intellectual Property Rights and know-how of either Party
and all personal data and sensitive personal data within the
meaning of the DPA;
“Consumer Price Index” or “CPI”
means the official measure of inflation against consumer
prices in the United Kingdom;
“Continuous Improvement Plan”
means the continuous improvement plan detailed in Clause
4.6 agreed between the Parties;
“Contract”
means the agreement entered into between the Council and
the Service Provider including the Conditions of Contract
and Schedules consisting of 1 (One); 2 (Two); 3 (Three); 4
(Four), 10 (Ten) and 15 (Fifteen) attached to the Conditions
of Contract;
“Contracting Authority”
means any contracting authority as defined in Public
Contracts Regulations 2015 (as amended)] other than the
Council;
“Contract Manager”
means the representative appointed by the Council
pursuant to Clause 6 (The Council’s Personnel and Staff);
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“Contract Manager
Representative(s)”
means representatives appointed by the Contract Manager
pursuant to Clause 6 (The Council’s Personnel and Staff);
“Contract Period”
means the period during which this Contract shall remain in
force and effect pursuant to Clause 3 (Duration of Contract)
and shall be the Initial Term as may be extended in
accordance with Clause 3 (Duration of Contract);
“Council”
means Suffolk County Council or its successor body as
applicable;
“Council’s Data”
means
(i)
(ii)
all data, records, information, text, drawings, reports
diagrams, images, or sounds generated or processed
by the Service Provider or provided to the Service
Provider for processing under this Contract which at
all times shall remain the property of the Council or;
any documentation and information produced by or
received from or on behalf of the Council in relation to
the Services and stored on whatever media;
“Council’s Environmental Policy”
means the Council’s document so titled, available on the
Council’s
website
using
the
link
http://www.suffolk.gov.uk/assets/suffolk.gov.uk/Environment
%20and%20Transport/Environment/2013-0819%20Environment%20Policy.pdf
“Court”
means a court of competent jurisdiction within the United
Kingdom and the European Court of Justice and acts or
directions of the European Union Commission;
“Criminal Records Checks
means one of four checks carried out (as appropriate)
under the bureau established pursuant to the Protection of
Freedoms Act 2012,




“Deprivation of Liberty”/”DoL”
“Disclosure & Barring Service
(“DBS”) ”
“DBS Check(s)
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Enhanced Disclosure with a Barred List Check
Enhanced Disclosure without a Barred List Check
Standard Disclosure
Basic Disclosure
means the framework of safeguards set out in Schedule A1
of the Mental Capacity Act 2005 (as amended);
means the Non-Departmental Public Body which helps
employers make safer recruitment decisions and prevents
unsuitable people from working with vulnerable groups,
including children and vulnerable adults;
means a Criminal Records Check on an individual carried
out through the DBS;
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“DBS Adult First”
means the service provided by the DBS that can be used in
exceptional cases where, and in accordance with
Department of Health guidance, a person is permitted to
start work with adults before a DBS certificate has been
obtained.
“DBS Update Service”
means a service available through the DBS, where an
individual has subscribed for the update service, for a free,
instant online check to be carried out by an employer on an
individual to see if any new information has come to light
since the criminal records certificate was first issued in
respect of an individual;
“Disclosure Scotland”
is an executive agency of the Scottish Government, providing
criminal records disclosure services by way of a Basic
Disclosure
check
for
employers
and voluntary
sector organisations;
“Discriminatory Change in Law”
means a Change in Law, the terms of which will apply
expressly to:
(a)
(b)
this Contract and not to similar contracts procured
under best value
the Service Provider and not to other persons;
“Dispute Resolution Procedure”
means the procedure set out in Clause 40 (Dispute
Resolution) of this Contract;
“DPA”
means the Data Protection Act 1998;
“Enhanced With Barred List
Check”
means a type of Criminal Records Check, which includes a
check of the DBS barred lists and any additional information
held by the police that is reasonably considered relevant to
the role being applied for and includes roles that do not work
with children or vulnerable adults specifically but potentially
both and should be used for jobs that involve caring for,
supervising or being in sole charge of children and/or
vulnerable adults;
“Enhanced Disclosure without
Barred List Check”
means a type of Criminal Records Check, which includes an
enhanced disclosure check without a barred list check that is
required where a service providers is engaged in a role that
meets the previous definition of Regulated Activity as
defined by the Rehabilitation of Offenders Act (ROA) 1974
(Exceptions) Order 1975, and in Police Act Regulations;
“Expiry Date”
means the date this Contract will expire in accordance with
Clause 3 (Duration of Contract);
“Force Majeure Event”
means any event materially affecting the performance by a
Party of its obligations under this Contract arising from any
act, event, omission, happening or non-happening beyond
its reasonable control including, but not limited to:
fire, flood, earthquake, windstorm or other natural disaster;
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epidemic or pandemic; terrorist attack; nuclear, chemical or
biological contamination; compliance with any governmental
order, governmental rule or governmental regulation which
comes into effect after the Commencement Date; loss at
sea; extreme adverse weather conditions; interruption or
failure of utility service;
“General Change in Law”
means a Change in Law which is not a Discriminatory
Change in Law or a Specific Change in Law;
“Initial Term”
means the initial term of the Contract from the
Commencement Date to the date shown in Section 1 Form
of Agreement; Clause 3.
“Intellectual Property Rights”
or “IPR”
means all intellectual and industrial property rights including
patents, registered trademarks, registered designs, utility
models, applications for and rights to apply for any of the
foregoing, unregistered design rights, unregistered
trademarks, rights to prevent passing off for unfair
competition and copyright, database rights, topography
rights and any other rights in any invention, discovery or
process, in each case in the United Kingdom and all other
countries in the world and together with all renewals and
extensions;
“Key Performance Indicators”
means the key performance indicators as defined and set
out in Schedule 2 (Performance Monitoring/KPI’s);
“Law”
means but is not limited to any applicable Act of Parliament,
statutory legislation, subordinate legislation within the
meaning of section 21(1) of the Interpretation Act 1978,
exercise of the Royal Prerogative, enforceable community
right within the meaning of section 2 of the European
Communities Act 1972, bylaw, regulatory policy, guidance
or industry code, judgment of a relevant Court of law, or
directives or requirements of any Regulatory Body of which
the Service Provider is bound to comply. Any reference to
“Legislation” shall be construed accordingly;
“Healthwatch”
means the body, structure or arrangement set up in
accordance with section 221(1) of the Local Government
and Public Involvement in Health Act 2007. Healthwatch
aim to give citizens a stronger voice in how their health and
social care services are delivered. Run by local individuals
and groups and independently supported, the role of
Healthwatch is to find out what people want, monitor local
services and to use their powers to hold them to account.
Each local authority (that provides social services) has been
given funding and is under a legal duty to make contractual
arrangements that enables Healthwatch activities to take
place;
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“Local Government Ombudsman”
means a local commissioner (known as the Local
Government Ombudsman) who is responsible for
conducting investigations for the Commission for Local
Administration in England (CLAE), which is a body of
commissioners established under the Local Government
Act 1974 and which, has the power to investigate
complaints about councils (and certain other bodies) in
England;
“Material Breach”
means the following issues are considered (without
limitation) to be a material Default:
a) failure to have in place the insurance cover required
under clause 33.
b) non-compliance with the equal opportunity requirements
of clause 25.
c) evidence of deliberate abuse and/or mistreatment of a
Service User by the Provider or the Provider’s Staff or
agents or by any sub-contractor or such subcontractor’s Staff or agents or negligence by the
Provider or any sub-contractor in permitting such abuse
or mistreatment
d) breach of the requirements of clause Clause 23 Bribery,
Corruption and Fraud
e) the conviction of the Provider of an offence under the
provisions of the Care Standards Act 2000 or
superseding legislation
f) persistent use by the Provider or a sub-contractor of
unqualified or untrained Staff except where the Council
has given written consent to such use
“Managing Authority”
means Managing Authority as defined in the Mental
Capacity Act 2005 (as amended);
“Month”
means calendar month;
“Party”
means a party to this Contract and “Parties” shall be
construed accordingly;
“Persistent Breach”
means where the Service Provider commits the same (or
similar) breach of the terms of this Contract at least three
(3) times in any rolling three (3) Month period or at least six
(6) times in any rolling twelve (12) Month period;
“Prescribed Rate”
means interest at the rate of eight percent (8%) per annum
over the Bank of England Official Bank Rate;
“Price”
means the contract price exclusive of any applicable tax,
payable to the Service Provider by the Council under this
Contract for the full and proper performance of Services
provided by the Service Provider in accordance with this
Contract
“Prohibited Act”
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the following constitute prohibited acts:
(a) to directly or indirectly offer, promise or give any person
working for or engaged by the Council a financial or
other advantage to:
(i)
induce that person to perform improperly a
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relevant function or activity; or
reward that person for improper performance of a
relevant function or activity;
(b) to directly or indirectly request, agree to receive or
accept any financial or other advantage as an
inducement or a reward for improper performance of a
relevant function or activity in connection with this
Contract;
(c) committing any offence:
(i) under the Bribery Act;
(ii) under legislation creating offences concerning fraudulent
acts;
(iii) at common law concerning fraudulent acts relating to this
Contract or any other contract with the Council; or
(iv) defrauding, attempting to defraud or conspiring to
defraud the Council.
(ii)
“Qualifying Change in Law”
means:
(a) a Discriminatory Change in Law; or
(b) a Specific Change in Law
which
foreseeable at the date of this Contract;
was
not
“Replacement Service Provider”
means any third party appointed by the Council from time to
time to provide all or any of services which are substantially
similar to any of the Services, or received in substitution for
any of the Services, following the expiry, termination or
partial termination of this Contract whether those services
are provided by the Council internally and/or by any third
party;
“Request”
shall have the meaning specified in Clause 20 (Freedom of
Information);
“Schedules”
means the Schedules attached to this Contract consisting of
1 (One); 2 (Two); 3 (Three); 4 (Four), 10 (Ten) and 15
(Fifteen).
“Service Provider”
means the Person or Company shown in Section 1 Form of
Agreement.
“Service Provider’s Authorised
Representative”
means such person nominated in writing by the Service
Provider to act as the Service Provider’s representative in
relation to this Contract and approved by the Contract
Manager;
“Service Provider’s Equipment”
means all equipment, parts, materials, articles and/or
mechanisms provided by the Service Provider for use in the
provision of the Services;
“Service User”
means a person who is the beneficiary of the Services to be
provided by the Service Provider;
“Service(s)”
means the Services to be provided pursuant to this
Contract, more particularly described in the Specification
and Service shall be construed accordingly;
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“Significant Decision”
means a decision that needs to be made relating to serious
medical treatment or change of accommodation of a
Service User in circumstances in which there are no friends
or family who it would be appropriate to consult on the
decision;
“Specific Change in Law”
means any Change in Law which specifically refers to the
provision of a service being the same as or similar to the
Services or to the holding of shares in companies whose
main business is providing a service being the same as or
similar to the Services;
“Specification”
means the description of the Services to be provided under
this Contract in Schedule 1 (Specification);
“Staff”
means all persons employed or engaged by the Service
Provider to perform this Contract together with the Service
Provider’s servants, suppliers, agents, volunteers and subcontractors used in the performance of this Contract and/or
the provision of the Services;
“Standard Disclosure”
means a type of Criminal Records Check for spent and
unspent convictions, cautions, reprimands and final
warnings, which is required where the role is included in the
list of eligible roles detailed in the
Rehabilitation of
Offenders Act (ROA) 1974 (Exceptions) Order 1975 and the
role does not required an enhanced DBS check;
“SVG”
Safeguarding Vulnerable Groups Act 2006 (as amended
under the Protection of Freedoms Act 2012);
“VAT”
means value added tax charged under the Value Added
Tax Act 1994 or any similar tax from time to time replacing it
or performing a similar fiscal function;
“Variation”
means any change to:
(i)
(ii)
(iii)
the terms and Conditions of Contract or Schedules
the Services or any of them
the standard of performance required of a Party
materially over and above that expressly stated or
provided for under this Contract provided such
variation or change is in accordance with Clause 14
(Variations and Change Control);
“Working Day”
means Monday to Friday excluding public and bank holidays
in England and Wales;
“Working Hours”
means the working hours as detailed in the Specification
under the heading ‘Working Hours’.
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2.
INTERPRETATION OF THIS CONTRACT
2.1
Except as otherwise expressly provided, the documents comprising this Contract are to be
taken as mutually explanatory of one another.
2.2
Any references to any Act of Parliament shall be deemed to include any amendment,
replacement or re-enactment thereof for the time being in force, and to include any
bylaws, licenses, statutory instruments, rules, regulations, orders, notices, directions,
European Union legislation made thereunder, and any condition attaching thereto.
2.3
The headings in this Contract are for ease of reference only and shall not be taken into
account in the construction or interpretation of any provision to which they refer.
2.4
The expression ‘person’ used in this Contract shall include (without limitation) any
individual partnership, local authority or incorporated or unincorporated body.
2.5
In this Contract, the masculine includes the feminine and the neuter and vice versa; the
singular includes the plural and vice versa.
2.6
References to Clauses or Schedules shall be to Clauses and Schedules of this Contract.
2.7
Any undertaking hereunder not to do any act or thing shall be deemed to include an
undertaking not to permit or allow the doing of that act or thing where that permission or
allowance is within the control of the Service Provider.
2.8
In the event of any inconsistency or conflict between the main body of this Contract and
the Schedules, the order or precedence as set out below shall prevail:
(a)
The Conditions of this Contract;
(b)
Schedule 1 (Specification);
(c)
Remaining Schedules of this Contract
2.9
In the event of a conflict (or any inconsistency) between the provisions of Clause 2.8
above and any Variations made to this Contract after the Commencement Date, the
Variation as agreed between the Parties shall take precedence.
B.
THE SERVICES AND PERSONNEL
3.
DURATION OF CONTRACT
3.1
This Contract shall commence on the commencement date as shown in Section 1 Form of
Agreement, Clause 3 and shall continue for the Initial Term unless terminated sooner in
accordance with the provisions of this Contract.
4.
THE SERVICES
4.1
The Service Provider shall provide the Services during the Contract Period in accordance
with the Contract and in particular Schedule 1 (Specification), which forms part of the
Contract.
4.2
The Service Provider shall discharge its obligations under this Contract with all due skill,
care and diligence by appropriate, competent, qualified and trained Staff. Except as
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otherwise specified in this Contract, the Service Provider shall provide all Staff and a
sufficient number of Staff, the Service Provider’s Equipment, information and data and
anything else whatsoever required for the provision of the Services including any
Variations to this obligation pursuant to Clause 14 (Variations and Change Control).
Except as specified in writing, the Service Provider shall not in any circumstances use the
Council’s Premises and/or Council’s Equipment.
4.3
In recognition of the best value duty placed on the Council by the Local
Government Act 1999, the Parties to this Contract shall work together to identify how the
Services can be continuously improved. Reviews shall be conducted in accordance with
Clause 15 (Performance Monitoring and Contract Review) and these Clauses generally.
The Service Provider agrees to co-operate fully and assist the Council at no extra charge
in any manner reasonably required by the Council in connection with the Council’s
performance of its Best Value duty. The Service Provider shall observe and facilitate the
Council’s request of cost savings. Where appropriate, a Variation shall then be made in
accordance with Clause 14 (Variations and Change Control), provided that such Variation
does not constitute a material change to the Contract.
4.4
Pursuant to Clause 4.3, the Service Provider shall throughout the Contract Period and in
accordance with its obligations under this Contract, provide a service that represents
value for money.
4.7
The Service Provider shall at all times comply with all relevant Council policies and codes
of practice provided a copy has been given by the Council to the Service Provider.
5.
SERVICE PROVIDER’S WARRANTY, RESPONSIBILITY AND KNOWLEDGE
5.1
The Service Provider warrants and represents that:
5.1.1
it has the full capacity and authority and all necessary consents to enter into and perform
this Contract;
5.1.2
it is not in default in the payment of any due and payable taxes or in the filing, registration
or recording of any document or under any legal or statutory obligation or requirement
which default might have a material adverse effect on its business, assets or financial
condition or its ability to observe or perform its obligations under this Contract.
5.1.3
it has not directly or indirectly canvassed any member or official of the Council with a view
to gaining more favourable consideration of its tender submission for this Contract and
has complied in all respects with the conditions and instructions of tendering; and
5.1.4
[all information, representations and other matters of fact communicated (whether in
writing or otherwise) to the Council by the Service Provider in connection with the
tendering process are true, complete and accurate in all respects.
5.1.5
In the three (3) years prior to the Commencement Date:
(i)
(ii)
5.2
it has conducted all financial accounting and reporting activities in compliance in all
material respects with the generally accepted accounting principles that apply to it
in any country where it files accounts; and
it has not done or omitted to do anything which could have a material adverse
effect on its assets, financial condition or position as an ongoing business concern
or its ability to fulfil its obligations under the Contract.
The Service Provider shall be deemed to have examined the documents constituting the
Contract, including the Conditions of Contract, Schedule 1 (Specification) and the other
Schedules and to have satisfied itself as to the correctness and sufficiency of its abilty to
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cover all its obligations under this Contract and for all matters and things necessary for the
proper completion of the Services.
5.2
The Service Provider shall be responsible for the accuracy of all documentation and
information or anything else supplied to the Council by the Service Provider and the
Service Provider shall pay the Council any extra costs incurred by the Council as a result
of any discrepancies, errors or omissions therein.
6.
THE COUNCIL’S PERSONNEL AND THE STAFF
6.1
The Council shall appoint a Contract Manager to administer this Contract and act as its
representative in connection with this Contract. The Contract Manager shall exercise the
functions allocated to him/her under this Contract. The Council may from time to time
remove and replace the Contract Manager, such removals or replacements being notified
immediately in writing to the Service Provider’s Authorised Representative.
6.2
The Contract Manager may appoint from time to time representatives to oversee the day
to day operation of the Contract who shall be the Contract Manager’s Representatives.
The Council shall notify the Service Provider in writing immediately upon any such
appointment.
6.3
The Service Provider shall at all times comply with any decision of the Contract Manager
or Contract Manager’s Representatives (as appropriate) in the exercise of their own
functions under this Contract unless and until such decision is altered or amended by an
agreed settlement following a reference under Clause 14 (Variations and Change
Control).
6.4
The Council will require the Service Provider to provide in writing the name, telephone
number and contact address for the Service Provider’s Authorised Representative who
will be responsible for the management of this Contract. The Service Provider’s
Authorised Representative must be empowered by the Service Provider to take decisions
in respect of this Contract and must be available to the Council during Working Hours.
6.5
The Service Provider’s Authorised Representative must have sufficient knowledge of this
Contract and the Services to deal with all the Council’s requirements in respect of the
performance of this Contract. The Council may acting reasonably direct that any
nominated Service Provider’s Authorised Representative who is unsuitable in respect of
skill and knowledge to carry out the functions on behalf of the Service Provider specified
in this Contract is no longer involved in the Services. However, the final decision in
relation to a Staff member shall remain the responsibility of the Service Provider.
6.6
The Service Provider’s Staff shall be properly and suitably qualified, competent, skilled,
honest, instructed, trained, experienced and supervised and shall at all times exercise due
care in the execution of their duties as well as:
6.6.1
comply with the relevant provisions of the Contract; and
6.6.2
comply with all relevant Law, policies, codes, rules, procedures and standards of the
Service Provider and all relevant rules, codes, policies, procedures and standards of the
Council, notified to the Service Provider by the Contract Manager from time to time.
6.7
The Service Provider shall be liable for any acts, omissions or defaults of its Staff
howsoever arising in connection with the Services.
6.8 to 6.12
NOT USED
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Pre-Employment Checks
6.13
The Service Provider shall carry out appropriate pre-employment checks, prior to the
appointment of an individual in connection with the Services, (including but not limited to
references, medical clearance, proof of right to work in the UK, professional
registration/qualifications and all checks required by HM Prison Service for individuals
who will or may be required to attend one or more of HM Prison’s in connection with the
Services.
6.14
The Service Provider shall obtain consent, prior to the commencement of any work of
each Staff member employed to work in connection with this Contract, to carry out all
necessary checks under Clause 6.13 and obtain consent of the Staff member to provide
evidence upon the request of the Council that such checks have been carried out.
6.15
Any Staff member whose conduct places any of the Council’s personnel, any member of
the public and/or any third party or any Service User at risk or which might bring the
Council into disrepute when working in connection with the provision of the Services shall
be the subject of immediate investigation by the Service Provider and dealt with to the
satisfaction of the Council which might direct that the Staff member be removed from
working in connection with the Services.
6.16
The Service Provider through monitoring of its compliance with this Clause 6 shall ensure
that the Council is kept advised at all times of any Staff member who, subsequent to
his/her commencement of and during employment as a Staff member, commits any
criminal act whatsoever or whose previous convictions become known to the Service
Provider or commits any act which puts or could put a Service User at risk or could bring
the Council into disrepute.
6.17
The Council reserves the right to visit the Service Provider’s Premises to audit and check
disclosure information as specified in Clause 6 to ensure and confirm evidence provided
by the Service Provider of compliance with this Clause 6.
Safeguarding in Employment
6.18
The Service Provider shall maintain and keep up to date appropriate policies on child
protection and the protection of adults at risk. These policies shall comply with any
legislative and registration/regulatory requirements, Department of Health guidelines and
also with policies, procedures and guidelines issued by the Council. The Service Provider
shall ensure that these policies, procedures and guidelines are communicated to Staff and
that appropriate training is provided to Staff in relation to them.
6.19
The Service Provider must have in place comprehensive procedures for reporting of and
managing allegations against Staff which demonstrates the promotion of the safety and
welfare of children and/or adults at risk and are compliant with statutory requirements. The
Service Provider must be able to evidence safe and robust recruitment procedures and
practice for all Staff working with children and/or adults at risk. The Service Provider shall
ensure that Staff know about and comply with the requirements to make accurate, factual
and contemporaneous records to ensure compliance with this Clause 6.
6.20
The Service Provider should fulfil its legal obligations in relation to carrying out Criminal
Records Checks and checking Staff through the DBS or Disclosure Scotland (as
appropriate) and the relevant national or local safeguarding authority, where necessary
and appropriate and complete a risk assessment form in respect of each Staff member
when making decisions in relation to convictions revealed by the Criminal Records
Check, using a form equivalent to or exceeds the risk assessment form referred to in
Schedule 10 . The Service Provider is required to pay the full cost of any such
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registration and related costs. The Service Provider acknowledges that the Council has
legal responsibilities under the SVG and that the Service Provider must check the
Protection of Children list and the Protection of Vulnerable Adults list and comply with all
other relevant Law in relation to safeguarding children and/or vulnerable adults and shall
provide such evidence of compliance with this Clause 6 as the Council shall reasonably
require. The Service Provider shall carry out repeat the checks specified in this Clause
6.20 on every three (3) year anniversary from the Commencement Date or carry out
regular checks using the DBS Update Service (where applicable).
6.21
The Service Provider shall nominate and name a designated senior officer or manager
and make arrangements during the provision of the Services under this Contract to
ensure that it complies with the provisions of the SVG.
6.22
The designated senior officer or manager referred to in Clause 6.21 above shall comply
with the provisions of “Working together” for safeguarding children, young people and
adults in dealing with allegations of abuse made against the Service Provider’s
employees who work with children, young people and adults. The Service Provider shall
have in place a safeguarding policy, which is equal to or exceeds the Safeguarding Policy
included in Schedule 10 (except where a conflict arises between the Safeguarding Policy
at Schedule 10 with the Conditions and/or the Specification, in which case the order of
precedence of documents specified in Clause 2.8 shall apply.
6.23
The Service Provider shall be entirely responsible for the employment and conditions of
service of its Staff and all obligations relating thereto. In addition to the pre-employment
checks to be carried out under this Clause 6, the Service Provider shall ensure that
suitable references reflecting the Staff member’s suitability to work with children and/or
vulnerable adults are taken up as part of the recruitment process. All Staff members
proposed for the Service shall be subject to an appropriate Criminal Records Check,
which should be carried out and results obtained prior to the Staff member being
employed in connection with the ServiceShould an adverse entry be revealed as a result
of the Criminal Records Check and/or should any convictions including those that would
otherwise be spent under the Rehabilitation of Offenders Act 1974 (Exceptions) Order
1975 be revealed, the Service Provider shall notify the Contract Manager of these
immediately. The Council shall have a right to veto the employment or engagement of
any Staff member proposed for the Service as a result of the adverse entry/convictions,
but not unreasonably or vexatiously.
6.24
The Service Provider shall use one of the following methods for the advice, processing
and storage of each Criminal Records Check:
6.24.1
Not used
6.24.2
by the Service Provider directly (if DBS registered); or
6.24.3
through an external DBS umbrella body.
6.25
The Service Provider shall comply with and observe all relevant Law in relation to Criminal
Records Checks and follow all recommendations and general guidance issued including
by any Central Government Department on Criminal Records Checks and carrying out
Criminal Records Checks in relation to any person engaged in a role that meet the
previous definition of Regulated Activity as defined by the Rehabilitation of Offenders Act
(ROA) 1974 (Exceptions) Order 1975, and in Police Act Regulations. when deciding
whether the outcome of the Criminal Records Check is satisfactory and whether the
individual concerned is suitable to carry out the role in connection with the Services.
6.26
The Service Provider shall maintain and disclose to the Council a record of the outcome
of the Criminal Records Check, in relation to each Staff member where a Criminal
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Records Check is required, setting out the disclosure number and date the disclosure
was made. The Service Provider shall store the record of the disclosure securely within
the Service Provider’s organisation in accordance with the Data Protection Act 1998 and
DBS Code of Practice. The Service Provider warrants to the Council that each disclosure
number will be unique and can, if necessary, be reconciled against a Staff member’s
name engaged or appointed in connection with the Services.
6.27
The Service Provider must have a robust system which evidences that when Staff are
suspended or dismissed and safeguarding children and/or vulnerable adults guidance
including government guidance is followed and relevant professional bodies informed in
the event of non-compliance. The Service Provider will ensure that it has appropriate
procedures in place that support:
6.27.1
the immediate reporting to the Contract Manager of concerns and details of any incidents
and/or convictions in relation to Staff members; and
6.27.2
other action necessary to support the Council’s policies, including the possible
mandatory participation in child protection meetings and actions.
6.28
The Service Provider shall have codes of conduct in place for all Staff that set out clear
standards of conduct especially in relation to personal and sexual relationships between
Staff and Service Users or other children and/or vulnerable adults.
6.29
The Service Provider must provide evidence of robust and effective complaints and
whistle-blowing policies including a guarantee to Staff and Service Users that using these
complaints and/or whistle blowing procedures appropriately will not prejudice their own
position and prospects.
6.30
If abuse of an individual is taking or has taken place or is suspected the Service Provider
must comply with the “duty to refer” by immediately notifying the Contract Manager and/or
safeguarding children and adults lead of the Council as well as the Service Provider’s
safeguarding children and vulnerable adults lead and should consider suspension of the
Staff member(s) and take emergency measures (for example, inform police/seek medical
assessment/treatment (as appropriate)). The Service Provider must, as far as is
practicable, preserve any evidence but may not commence any investigation until
authorised to do so by the Contract Manager. The Service Provider must also notify the
DBS and/or Disclosure Scotland (as appropriate) if a Staff member is dismissed or
removed from working in connection with the Services for the reasons described in the
“Duty to Refer” section of Schedule 10.
6.31
The Service Provider shall obsent the consent of each Service User to forward the
Service User’s records to the Council on termination or expiry of the Contract.
Requests for Information from the Disclosure and Barring Service (DBS)
6.32
The Council shall be entitled under its duty to the DBS to respond to requests from the
DBS for further information already held by the Council in relation to the Staff.
6.33
The Service Provider shall respond to requests from the Council within a reasonable time
about Criminal Records Checks in relation to the Staff and shall cooperate with the
Council to enable the Council to comply with its duty to the DBS.
6.34
Failure by the Service Provider to comply with the safeguarding provisions of this Clause
6 shall entitle the Council to terminate the Contract in accordance with Clause 41.1.5.5.
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7.
OFFER OF EMPLOYMENT
7.1
For the duration of this Contract and for a period of twelve (12) Months after the Expiry
Date or earlier termination of this Contract, the Service Provider shall not employ or offer
employment to any of the Council’s employees and/or personnel who have been
associated with the procurement and/or the contract management of the Services. This
Clause shall not affect an offer of employment which results from a response by the
employee and/or personnel member to any public advertisement.
C.
FINANCIAL ARRANGEMENTS
8.
CONTRACT PRICE AND PAYMENT
8.1
The Council shall pay the Provider the Contract Price as set out in Schedule 15 which
shall be the total amount payable to the Provider by the Council and/or the Service
User and/or (where applicable) any third party, for all the Services which the Provider
is contracted to provide as specified in the Individual Placement Contract or Individual
Service Contract.
8.1
Initially the Provider shall invoice the Council two weekly in arrears for the agreed
weekly gross price until the Provider receives an Individual Placement Contract setting
out the relevant Service User Contributions or is notified in writing by the Council of
the date the assessed payments by Automated Payment System will commence. This
will normally occur when the trial period has been completed and/or the Service
User’s financial assessment has been completed.
8.2
The uniquely numbered invoice shall include details of all calculations to show how
the sums charged have been calculated and any VAT information required in
accordance with Clause 10 (Value Added Tax); a detailed breakdown of the Services
provided supported by any other documentation reasonably required by the Council to
substantiate the invoice.
8.3
The Council will pay correctly presented invoices within 30 calendar days from the
date of receipt.
8.4
The process for automated payment of the Contract Price shall be as specified in
Schedule 15 and will be made to the Provider net of the Service User’s Contribution
and, if applicable, of any contribution from a third party.
8.5
Payment is deemed to have been made when the Council transmits payment for
processing to its BACS Bureau and the Service Provider accepts that if a non-Working
Day falls near the transmission of payment that this may extend the period before the
payment will arrive in the Service Provider’s account.
8.6 – 8.8 NOT USED
8.9
The Council may withhold payment of any disputed amount pending agreement or
determination of the Service Provider's entitlement to the disputed amount. In the event of
any dispute regarding an invoice which has been notified to the Service Provider, the
Service Provider shall provide any documentation reasonably required by the Council to
substantiate the invoice and/or issue a new invoice for the disputed amount and a new
separate invoice for the undisputed amount.
8.10
NOT USED
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8.11
NOT USED
8.12
Any dispute which remains unresolved between the Parties arising from the provisions of
this Clause 8 shall be resolved in accordance with Clause 40 (Dispute Resolution). If the
determination of any such dispute shows that:
8.12.1
the Council has withheld any amount which the Service Provider was entitled to be paid,
the Council shall pay such amount to the Service Provider;
8.12.2
the Service Provider has been overpaid, the Service Provider shall repay such overpaid
amount to the Council with interest in each case on that amount at the Prescribed Rate
from the date on which payment should have been made (in the case of failure to pay by
the Council) or from the date on which payment was made (in the case of excessive
claims by the Service Provider) until all relevant monies have been paid in full and
whether before or after judgment.
8.13
The Council may reduce payment in respect of any Services which the Service Provider
has either failed to provide or has provided inadequately, without prejudice to any other
rights or remedies of the Council.
8.14
The Service Provider shall not suspend the provision of Services for failure by the Council
to pay disputed charges in connection with this Contract.
8.15
No debt incurred in the delivery of this Contract may be assigned without the prior written
permission of the Council.
Price Review
8.16
The Council shall review the Schedule price(s) annually and if the Council decides that a
variation in the Schedule price(s) is to be made, it will advise the Provider in writing. The
variations shall take effect from the subsequent April (which will accord with the date the
Department of Work and Pensions implements changes to its benefit rates), or from
another date notified by the Council.
9.
RECOVERY OF SUMS DUE
9.1
Wherever under this Contract any sum of money is recoverable from or payable by the
Service Provider (including any sum which the Service Provider is liable to pay to the
Council in respect of any breach of this Contract), the Council may deduct that sum from
any sum then due, or which at any later time may become due to the Service Provider
under this Contract or any other contract with the Service Provider.
9.2
Any overpayment by the Council to the Service Provider shall be recoverable by the
Council.
9.3
The Service Provider shall make any payments due to the Council without any deduction
whether by way of set-off, counterclaim, discount, abatement or otherwise unless the
Service Provider has obtained the prior approval of the Council to such deduction.
10.
VALUE ADDED TAX
10.1
Any consideration due in respect of taxable supplies under this Contract is exclusive of
VAT.
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10.2
If this Contract or anything in it gives rise to a taxable supply for VAT purposes on the
production of a valid VAT invoice the appropriate Party shall pay to the other a sum equal
to that VAT in addition to the relevant consideration.
10.3
The appropriate Party shall provide to the other any information reasonably requested in
relation to the amount of VAT chargeable in accordance with this Contract.
10.4
A VAT invoice will not be valid for the purposes of charging VAT if more than forty-eight
(48) Months have elapsed since the time of supply.
10.5
It is agreed that neither Party shall be liable for any penalties or interest arising from the
accounting nor the failure of the other to account to HM Revenue and Customs at the
correct time for any VAT correctly due in relation to the consideration referred to in this
Clause 10. The Service Provider shall be liable to the Council for any losses, costs,
expenses the Council incurs as a result of the Service Provider accounting nor the failure
of the other to account to HM Revenue and Customs at the correct time for any VAT
correctly due inconnection with this Contract.
11.
NOT USED
12.
EURO
12.1
Any legislative requirement to account for the Services in the Euro, (or to prepare for such
accounting) instead of and/or in addition to GBP, shall be implemented by the Service
Provider at nil charge to the Council.
12.2
The Council shall provide all reasonable assistance to facilitate compliance by the Service
Provider under Clause 12.1.
12.3
Notwithstanding Clause 12.1 any additional costs, duties and responsibility arising out of
the United Kingdom entering into the European Monetary Union and relating to this
Contract shall be at the Service Provider’s sole expense.
D.
CONTROL OF THIS CONTRACT
13.
ASSIGNMENT AND SUBCONTRACTING
13.1
The Service Provider shall not assign or in any way dispose of this Contract or any part
thereof.
13.2
The Service Provider shall not sub-contract the whole or any part of this Contract to any
person without the prior Approval of the Council (such Approval not to be unreasonably
withheld or delayed) provided the Council was made aware of the use of the specific subcontractor in the Tender Response Document submitted to the Council.
13.3
If the Service Provider should sub-contract the provision of the Services or any part
thereof to any person, that shall not relieve the Service Provider from any liability or
obligation under this Contract and the Service Provider shall be responsible for the acts,
defaults or neglect of any sub-contractor or agents in all respects as if they were the acts,
defaults or neglect of the Service Provider.
13.4
Where the Council has Approved the use of a sub-contractor, such sub-contract(s) shall
reflect the same terms of this Contract and for the avoidance of doubt the sub-contract(s)
shall not contain any terms which are incompatible and/or conflict with this Contract.
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13.5
The Council shall be entitled to:
13.5.1
assign, novate or otherwise dispose of its rights and obligations under this Contract either
in whole or part to any Contracting Authority or Replacement Service Provider which shall
not increase the burden of the Service Provider’s obligations pursuant to this Contract; or
13.5.2
novate this Contract to any body established by statute in order substantially to perform
any of the functions that previously had been performed by the Council which shall not
increase the burden of the Service Provider’s obligations pursuant to this Contract.
13.6
Any change in the legal status of the Council such that it ceases to be a Contracting
Authority shall not, subject to Clause 13.7, affect the validity of this Contract. In such
circumstances, this Contract shall bind and inure to the benefit of any successor body to
the Council.
13.7
If this Contract (whether in whole or part) is novated pursuant to Clause 13.5 to an
undertaking that is not a Contracting Authority, or if an undertaking that is not a
Contracting Authority becomes the Council (for the purposes of this Clause 13.7 both
such undertakings are referred to as the “Transferee”):
13.7.1
the rights of termination of the Council in Clause 41 (Termination) shall be available, to
the Service Provider if applicable to the Transferee; and
13.7.2
the Transferee shall only be able to assign, novate or otherwise dispose of its rights and
obligations under this Contract or any part thereof with the previous consent in writing of
the Service Provider, such consent not to be unreasonably withheld or delayed.
13.8
The Council reserves the right to jointly attend any meeting between the Service Provider
and its authorised sub-contractor in connection with the Services.
14.
VARIATIONS AND CHANGE CONTROL
14.1
Any very minor change to this Contract, as determined by the Contract Manager, shall be
agreed by the Parties in accordance with Schedule 3 (Change Control Procedure).
14.2
All changes to the Contract other than those specified in Clause 14.1 above
shall be agreed by the Parties in writing as a Variation to the Contract.
14.3
The Council may request a Variation to the Contract provided that such Variation does not
amount to a material change to the Contract. If the Council wishes to request a Variation it
must notify the Service Provider in writing of:
14.3.1
details of the proposed the Variation and giving the Service Provider sufficient information
to assess the extent of the Variation proposed;
14.3.2
details of any change to the Price required in order to implement the Variation. Such
Variation in the Price shall be calculated by the Service Provider and agreed in writing
with the Council and shall be such amount as properly and fairly reflects the nature and
extent of the Variation in all the circumstances. The Council shall provide such
information as may be reasonably required to enable such varied Price to be calculated. If
the Price cannot be agreed, the issue will be referred for dispute resolution under Clause
40 (Dispute Resolution); and
14.3.3
the time limit within which the Supplier shall respond to the request for a Variation and
such time limits shall be reasonable having regard to the nature of the Variation.
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14.4
No Variation of this Contract shall be binding on either Party unless made in writing
and signed by duly authorised representatives of each of the Parties or sealed/executed
as a deed by the Parties (as appropriate).
15.
PERFORMANCE MONITORING AND CONTRACT REVIEW
15.1
Contract review meetings will be held between the Service Provider’s Authorised
Representative and the Contract Manager at regular intervals specified in advance by the
Council to monitor the Service Provider’s performance both on this Contract as a whole
and against performance targets specified in Schedule 2 (Performance Monitoring and
KPI’s) (including provisions of Clause 4.5 to 4.6 inclusive). The Service Provider shall
afford all necessary resources and facilities to allow the Council to carry out its contract
reviews and provide all reasonable information required at no additional cost to the
Council.
15.2
The Service Provider shall monitor its performance in the delivery of the Services in
accordance with the procedure set out in Schedule 1 (Specification) and Schedule 2
(Performance Monitoring and KPI’s) and provide all information required therein in the
format required.
15.3
Provided that the Service Provider’s Authorised Representative is given reasonable notice
of the same, the Service Provider’s Authorised Representative shall attend meetings
where an issue related to the Services is to be considered unless an emergency situation
arises, as determined by the Contract Manager in which case the Service Provider’s
Authorised Representative may be required to attend a meeting with the Contract
Manager at short notice.
16.
INTELLECTUAL PROPERTY RIGHTS
16.1
All Intellectual Property Rights in any Council Data, specifications, instructions, data,
databases, models, reports or other material:
16.1.1
furnished to or made available to the Service Provider by the Council by way of an
exclusive licence during the Contract Period shall remain the property of the Council;
16.1.2
prepared by or for the Service Provider for use, or intended use, in relation to the
performance of the Contract shall belong to the Council and the Service Provider shall
not, and shall procure that the Staff shall not, (except when necessary for the
implementation of the Contract) without prior Approval, use or disclose any such
Intellectual Property Rights, or any other information (whether or not relevant to the
Contract) which the Service Provider may obtain in performing the Contract except
information which is already in the public domain.
16.2
The Service Provider shall procure that the owner of the third party Intellectual Property
Rights grants to the Council a non-exclusive licence, or if itself a licensee of those rights,
shall grant to the Council an authorised sub-licence, to use, reproduce, and maintain the
material. Such licence or sub-licence shall be non-exclusive, perpetual and irrevocable,
shall include the right to sub-license, transfer, novate or assign to other Contracting
Authorities, the Replacement Service Provider or to any other third party providing
services to the Council, and shall be granted at no additional cost to the Council.
16.3
The Service Provider shall during and after the expiration of this Contract, on written
demand indemnify and keep indemnified the Council against all actions, suits, claims,
demands, losses, charges, damages, costs and expenses and other liabilities which the
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Council may suffer or incur as a result of or in connection with any breach of this Clause
by the Service Provider and/or any of its Staff, except where any such claim relates to: the
use of data supplied by the Council which is not required to be verified by the Service
Provider under any provision of this Contract.
16.4
Nothing in this Contract shall in any way derogate from the rights of the Council under any
Law relating to copyright.
16.5
The Council shall notify the Service Provider in writing of any claim or demand brought
against the Council for infringement or alleged infringement of any Intellectual Property
Right in materials supplied or licensed by the Service Provider. The Service Provider shall
at its own expense conduct all negotiations and any litigation arising in connection with
any claim for breach of Intellectual Property Rights in materials supplied or licensed by the
Service Provider, provided always that the Service Provider:
16.5.1
shall consult the Council on all substantive issues which arise during the conduct of such
litigation and negotiations;
16.5.2
shall take due and proper account of the interests of the Council; and
16.5.3
shall not settle or compromise any claim without the Council’s prior written consent (not to
be unreasonably withheld or delayed).
16.6
The Council shall at the request of the Service Provider afford to the Service Provider all
reasonable assistance for the purpose of contesting any claim or demand made or action
brought against the Council or the Service Provider for infringement or alleged
infringement of any Intellectual Property Right in connection with the performance of this
Contract.
17.
AUDIT RIGHTS
17.1
The Service Provider shall permit or procure permission for any authorised representative
of the Council (including the Council’s internal auditors and external auditors) to have
reasonable access for audit purposes to information, documents, data, systems, the
Service Provider’s Premises and/or the Service Provider’s Equipment used in the
provision of the Services and any information, documents, reports or anything else
reasonably required for inspection by the Council and/or its authorised representatives.
17.2
Access shall include (without limiting the generality of the foregoing):
17.2.1
reasonable access to the Staff of the Service Provider who are engaged in the provision
of the Services;
17.2.2
inspection of the arrangements being made by the Service Provider to comply with its
obligations under this Contract;
17.2.3
access to such financial and other records kept as part of the provision of the Services by
the Service Provider as may be reasonably required from time to time by the Council to
enable the Council to verify the sums due and payable under the terms of this Contract.
The Service Provider shall keep and maintain for a period of six (6) years after the
Contract Period, or a longer period as may be agreed between the Parties, full and
accurate records of this Contract including Services provided under it, all expenditure
reimbursed by the Council and all payments made by the Council. For the avoidance of
doubt this Clause is in addition to any legal requirement and does not negate the need for
any such retention of records;
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17.2.4
access to records relating to Service Users within a timeframe specified by the Council.
17.3
Access may be at any time without notice provided there is good cause for access without
notice and provided that the Contract Manager and/or the Contract Manager’s
Representatives shall comply with all reasonable requirements of the Service Provider for
the purpose of protecting the confidentiality of the information of third parties and no
information will be divulged to any third party save in pursuance of statutory obligations.
17.4
The Council reserves the right to carry out an audit jointly with the Service Provider of the
performance of authorised sub-contractors used in connection with the Services.
18.
RECORDS
18.1
The Service Provider shall maintain current and accurate records of all work carried out in
the provision of the Services and shall ensure that these records shall be available for
inspection by an authorised representative of the Council at all reasonable times in
accordance with Clause 17.
18.2
The Service Provider shall maintain security safeguards against the destruction or loss or
unauthorised use or alteration of records irrespective of the storage media which are
under the Service Provider’s control as part of the Services including the Council’s Data.
Such safeguards shall include an obligation on the Service Provider to ensure that access
to records is only obtained by such Staff as may be specifically designated by the
Contract Manager and access to records by Staff is provided only as necessary in
connection with the provision of Services.
18.3
If any records are accidentally or wilfully destroyed otherwise than by the Council or on
the authorisation of the Council in the event that the Service Provider does not have in
place a method for reinstatement or replacement of such records within seven (7) Working
Days of receipt of a notice from the Council and without prejudice to the Council’s other
rights at law the Service Provider shall reimburse the Council’s reasonable costs in
restoring such records and/or the Council’s Data such costs to be accounted for during
the term of this Contract by way of rebate in subsequent invoices for the sums paid
pursuant hereto.
19.
PUBLICITY
19.1
Except with the prior Approval of the Council, the Service Provider shall not make any
press announcements or publicise this Contract or any part thereof in any way.
19.2
The Service Provider shall take reasonable steps to ensure the observance of the
provisions of Clause 19.1 by all of its’ Staff.
19.3
The Council shall consult with the Service Provider to inform its decision regarding any
redactions required by the Service Provider prior to publication, however the final decision
regarding publication shall lie with the Council taking into account the guidance for dealing
with Requests.
19.4
The Council shall be entitled to publicise and/or release a copy or copies of the Contract
in accordance with any legal obligation upon the Council and/or compliance with a Court
order, including any examination of this Contract by an auditor or otherwise.
19.5
The Service Provider shall assist and cooperate with the Council to enable the Council to
publish this Contract.
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E.
FREEDOM OF INFORMATION CONFIDENTIALITY AND DATA PROTECTION
20.
FREEDOM OF INFORMATION
20.1
The Service Provider acknowledges that the Council is subject to the requirements under
the Freedom of Information Act 2000 (“FOIA”) and the Environment Information
Regulations 2004 (“EIR”) and shall cooperate with the Council (at the Service Provider’s
expense) to enable the Council to comply with these information disclosure requirements
and any requests for information under the FOIA and/or EIR (“Request(s)”).
20.2
The Service Provider shall give reasonable assistance to the Council to comply with the
FOIA and EIR. The Service Provider shall not do any act either knowingly or recklessly
that would cause the Council to be in breach of the FOIA and/or the EIR.
20.3
In particular, the Service Provider shall supply all such information to the Council (together
with reasonable assistance to locate the same) which are needed by the Council to
comply with its obligations under the FOIA and EIR within a timescale to be agreed on a
case by case basis, but in any event, not to exceed the timescale that the Council must
comply with as specified in the FOIA and/or EIR (as appropriate).
20.4
The Service Provider shall advise the Council of any Request received by the Service
Provider where the information requested is subject to the Services provided under this
Contract and shall follow the Council’s access procedures in fulfilling the Request.
20.5
The Service Provider shall be required to follow all Council processes and procedures that
provide for compliance with the FOIA and EIR where information held is subject to the
Services.
20.6
Without prejudice to the generality of its obligations under this Clause 20, the Service
Provider shall:-
20.6.1
transfer any Request for Confidential Information that it or its sub-contractor
receives, to the Contract Manager of the Council as soon as practicable after receipt and
in any event within two (2) Working Days following receipt of the Request; and
20.6.2
provide the Council with a copy of all information in its or its Staff members’ possession or
power that the Council reasonably considers it relevant to the Request and in the form
that the Council requires as soon as practicable and in any event within five (5) Working
Days following receipt of the Council’s request for that information (and any follow-up
information required by the Council thereafter within two (2) Working Days following
receipt of the Council’s follow-up request);
20.6.3
The Service Provider will forward to the Council immediately any Request it directly
receives.
20.7
In the event that the Council or the Service Provider receiving a Request pursuant to
Clause 20.6 reasonably believes that any information required to be disclosed by the
Council is exempt from the provisions of the FOIA the Service Provider may notify the
Council accordingly, specifying the reasons for the belief that the information is exempt,
such notification to be given within two (2) Working Days of the date on which the Request
for information is received.
20.8
In the event that the Service Provider notifies the Council in accordance with Clause 20.7
the Council shall acting in good faith consider the reasons given by the Service Provider
and following such consideration shall either:
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20.8.1
withdraw its request in the event that it agrees the information is exempt; or
20.8.2
confirm its request in which case the Service Provider shall provide the information so
requested within such period as may reasonably be specified by the Council.
20.9
Subject to the provisions of Clause 21 (Confidentiality) the Council shall have the
discretion to disclose any information which is the subject of this Contract to any person
who makes a request under the Act and/or Regulations and which, in the opinion of the
Council, it has to disclose to discharge its responsibilities under the FOIA and/or EIR.
20.10
When exercising its right under Clause 20.9, the Council shall consult the Service
Provider and may take account of any reasonable suggestions made by the Service
Provider, however the final decision as to whether any information shall be withheld or
disclosed shall lie with the Council.
21.
CONFIDENTIALITY
21.1
The Parties to this Contract each agree to keep confidential all information that ought to
be considered as confidential that is shared between them (however it is conveyed or on
whatever media it is stored) in relation to the Service and/or the Service Users.
21.2
Each Party:
21.2.1
shall treat all Confidential Information belonging to the other Party as confidential and
safeguard it accordingly; and
21.2.2
shall not disclose any Confidential Information belonging to the other Party to any other
person without the prior written consent of the other Party, except to such persons and to
such extent as may be necessary for the performance of this Contract or except where
disclosure is otherwise expressly permitted by the provisions of this Contract.
21.3
The Service Provider shall ensure that its Staff are aware of the Service Provider’s
confidentiality obligations under this Contract.
21.4
The Service Provider and/or its Staff shall not use any Confidential Information it receives
from the Council otherwise than for the purposes of this Contract.
21.5
The foregoing restriction set out in Clause 21.2 relating to Confidential Information shall
not apply to:
21.5.1
information which at the time of disclosure is generally available to the public other than
by breach of this Clause by the Council;
21.5.2
information which is in possession of the disclosing party (without restrictions) before the
date on which the disclosing party received that information as a result of or in connection
with this Contract;
21.5.3
information which is required to be disclosed by Law and/or compliance with a Court
order;
21.5.4 information which is reasonably required by any person engaged in the performance of
their obligations in relation to the Contract for the performance of those obligations.
21.6
Nothing in this Clause 21 shall prevent the Council disclosing any Confidential
Information:
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21.6.1
for the purpose of the examination and certification of the Council’s accounts; or
21.6.2
for the purpose of any examination pursuant to section 6(1) of the National Audit Act 1983
of the economy, efficiency, and effectiveness with which the Council has used its
resources; or
21.6.3
to any government department or any other Contracting Authority. All government
departments or Contracting Authorities receiving such Confidential Information shall be
entitled to further disclose the Confidential Information to other government departments
or other Contracting Authorities on the basis that the information is Confidential
Information and is not to be disclosed to a third party which is not part of any government
department or any Contracting Authority; or
21.6.4
to any person engaged in providing any services to the Council for any purpose relating to
or ancillary to this Contract provided that in disclosing information the Council discloses
only the information which is necessary for the purpose concerned and requires that the
information is treated in confidence and that a confidentiality undertaking is given where
appropriate.
21.7
Nothing in this Clause shall prevent either Party from using any techniques, ideas or
know-how gained during the performance of this Contract in the course of its normal
business to the extent that this does not result in a disclosure of Confidential Information
or an infringement of Intellectual Property Rights.
22.
DATA PROTECTION
22.1
Each Party, including the Staff and the Council’s employees and personnel, shall comply
with the requirements of the DPA in relation to the Services and shall not knowingly or
negligently by any act or omission, place the other Party in breach, or potential breach, of
the DPA.
22.2
The Service Provider shall give all reasonable assistance to the Council necessary to
enable it to comply with its obligations under the DPA.
22.3
The Service Provider shall be notified in accordance with the DPA and shall advise the
Contract Manager of its notification reference on the Public Register of Data Controllers.
22.4
In relation to all Personal Data (as defined in the DPA) and processing any of the
Council’s Data, the Service Provider shall at all times comply with the DPA as a Data
Processor (as defined by the DPA). Where the Service Provider is a Data Controller in the
course of providing the Services, it shallif necessary, maintain a valid and up to date
registration or notification under the DPA covering the data processing to be performed in
connection with the Services.
22.5
The Service Provider shall only undertake processing of Personal Data reasonably
required in connection with the Services and shall not transfer any Personal Data to any
country or territory outside the European Economic Area.
22.6
The Service Provider shall bring into effect and maintain all necessary technical and
organisational measures to prevent unauthorised or unlawful processing of Personal Data
and accidental loss or destruction of, or damage to Personal Data including but not limited
to take reasonable steps to ensure the reliability of Staff having access to the Personal
Data and shall ensure that its Staff receive appropriate training in data protection to
ensure compliance.
22.7
The Council may, at reasonable intervals, request a written description of the technical
and organisational methods employed by the Service Provider. Within thirty (30)
Calendar Days following the date of such a request, the Service Provider shall supply
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written particulars of all such measures detailed to a reasonable level such that the
Council can determine whether or not,
in connection with the Personal Data, it is
compliant with the DPA.
22.8
The Service Provider shall comply with the Council’s security requirements including
adherence to security policies and with obligations equivalent to those imposed on the
Council by the Seventh Data Protection Principle (as set out in Schedule 1 of the DPA)
and any requirements specifically notified to the Service Provider by the Council.
22.9
The Service Provider shall either be certified to BS ISO/IEC 27001 or have agreed a
security policy with the Council that complies with all relevant standards of ISO/IEC 27001
and shall have provided the Contract Manager with a copy of the policy. In the event that
the Service Provider is not certified to ISO 27001, the Council shall be entitled to establish
its own systems audit for evaluating and monitoring the effectiveness of the Service
Provider’s data protection systems and shall be entitled to deduct the reasonable cost of
maintaining such systems from sums due to the Service Provider.
22.10
The Service Provider shall, upon reasonable notice, allow officers of the Council to have
reasonable rights of access at all times to the Service Provider’s Premises, Staff and its
records in connection with the provision of Services for the purposes of monitoring the
Service Provider’s compliance with its security requirements, including it’s obligations
under the DPA.
22.11
The Service Provider shall ensure that personal information is not disclosed, either free of
charge or in return for payment, to any other party except where there is a legal or
regulatory obligation to do so and where the Service Provider has consulted the Council
regarding the legality and mechanism of the disclosure and obtained the Council’s written
consent in advance of the disclosure.
22.12
The Service Provider shall not disclose Personal Data to any third parties other than:-
22.12.1 to Staff to whom such disclosure is reasonably necessary in order for the Service Provider
to carry out the Services; or
22.12.2 to the extent required by Law and/or compliance with a Court order;
22.12.3 provided that disclosure under this Clause 22.12 is made subject to written terms
substantially the same as, and no less stringent than, the terms contained in this Clause
22 and that the Service Provider shall give notice in writing to the Council of any
disclosure of Personal Data it is required to make under Clause 22.12 immediately it is
aware of such a requirement.
22.13
Without prejudice to the generality of the foregoing, the Service Provider shall not
read/listen and shall prohibit its Staff unless necessary in connection with the provision of
Services and all its visitors from reading/listening (as appropriate) to any documents
however produced or any information displayed on any screen or the contents of any tape
or electronically produced recording. The Service Provider shall also ensure that all Staff
who are permitted access to Confidential Information and/or Personal Data receive
appropriate training in data protection to ensure compliance.
22.14
The Service Provider shall immediately inform the Council of any breach or potential
breach of this Clause 22.
F.
ADDITIONAL STATUTORY OBLIGATIONS AND REGULATIONS
23.
BRIBERY CORRUPTION AND FRAUD
23.1
The Service Provider shall not offer or give, or agree to give, to any employee, agent,
servant or representative of the Council any gift or consideration of any kind as an
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inducement or reward for doing, refraining from doing, or for having done or refrained from
doing, any act in relation to the obtaining or execution of the Contract or any other
contract with the Council, or for showing or refraining from showing favour or disfavour to
any person in relation to the Contract or any such contract.
23.2
The Service Provider shall take all reasonable steps to prevent any fraudulent activity
(including but not limited to the submission of inaccurate, incomplete, misleading or
falsified management information) by the Staff, the Service Provider (including its
shareholders, members and directors) and/or any of the Service Provider’s suppliers, in
connection with the receipt of monies from the Council.
23.3
Where the Council has reasonable cause to suspect that fraud or irregularity has occurred
in relation to the delivery of the Services and payments made hereunder, the Council shall
have the right of access to the Service Provider’s Premises at any reasonable time with or
without notice to examine and remove or copy all relevant documents and records and to
interview the Staff engaged in connection with the Services.
23.4
The Service Provider:
23.4.1
shall not, and shall procure that its Staff shall not, in connection with this Contract commit
a Prohibited Act; and
23.4.2
warrants, represents and undertakes that it is not aware of any financial or other
advantage being given to any person working for or engaged by the Council, or that an
agreement has been reached to that effect, in connection with the execution of this
Contract, excluding any arrangement of which full details have been disclosed in writing to
the Council before execution of this Contract.
23.5
The Service Provider shall if requested, provide the Council with any reasonable
assistance, at the Council's reasonable cost, to enable the Council to perform any activity
required by any relevant government or agency for the purpose of compliance with the
Bribery Act.
23.6
The Service Provider shall have an anti-bribery policy.
23.7
The Council shall be entitled to immediately terminate the Contract or any part of it
and to recover from the Service Provider the amount of any loss resulting, plus the value
of any gift or consideration if in relation to the Contract or any other contract with the
Council if the Service Provider and or any of its Staff-:
23.7.1
(whether with or without that Service Provider’s knowledge) shall have offered, or given,
or agreed to give, to any person, any gift, or consideration, inducement or reward of any
kind, for doing or not doing any action (except in accordance with a permitted and lawful
subcontract), or
23.7.2
committed any offence under the Prevention of Corruption Acts 1889 to 1916 and/or
Bribery Act 2010; or
23.7.3
given any fee or reward, the receipt of which is an offence under Section 117 (2)
of the Local Government Act, 1972.
23.8
If any breach of this Condition 23 is suspected or known, the Service Provider must notify
the Council immediately.
23.9
The Service Provider must respond promptly to the Council's enquiries, co-operate with
any investigation in relation to this Clause 23 including allowing the Council to audit
books, records and any other relevant documentation.
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24.
RE-USE OF PUBLIC SECTOR INFORMATION
24.1
The Service Provider acknowledges that the Council has legal responsibilities to allow reuse of public sector information in accordance with the Re-Use of Public Sector
Information Regulations 2005.
24.2
The Council shall not authorise re-use of information which is exempt from disclosure
under the FOIA and the EIR.
24.3
The Council shall not authorise re-use of information where the Service Provider owns the
Intellectual Property Rights in that information, unless re-use is required by Law and/or
compliance with a Court order.
24.4
Where information is jointly owned by the Council and the Service Provider and it is
impossible to identify the Intellectual Property Right elements owned by each Party the
Council shall consult the Service Provider before authorising re-use, however the final
decision shall lie with the Council.
25.
EQUAL OPPORTUNITIES
25.1
In the performance of the Services, the Service Provider shall not unlawfully discriminate
within the meaning and scope of any law, enactment, order, or regulation relating to
discrimination including the Equality Act 2010 (as amended from time to time) whether in
race, gender, religion, belief, disability, sexual orientation, gender reassignment, marriage,
or civil partnership, age, human rights, pregnancy or maternity or otherwise in
employment and shall have regard to other official guidance and code of practice in
relation to promotion of equality in employment.
25.2
The Service Provider shall comply with the provisions of the National Minimum Wage Act
1998 (as amended) in relation to the payment of its Staff.
25.3
The Service Provider shall have an equal opportunities policy approved by the Council..
25.4
The Service Provider shall take all reasonable steps to secure the observance of this
Clause 25 by its Staff employed in connection with the Contract.
25.5
The Service Provider shall provide such information as the Council may reasonably
require for the purpose of assessing the Service Provider’s continued compliance with
this Clause 25. From time to time the Council may request and the Service Provider shall
produce and send to the Council an audit in writing on an annual basis of an anonymised
random sample of employees (the size of sample to be specified by the Council)
demonstrating that the National Minimum Wage has been paid and taking into account
travel time under Regulation 15 and training under Regulation 19 of the National
Minimum Wage Regulations 1999.
25.6
If any Court or tribunal, or the Equality and Human Rights Commission (or any other
Commission promoting equal opportunity) should make any finding of unlawful
discrimination against the Service Provider, then the Service Provider shall immediately
inform the Council of such a finding and the Council shall have the right to terminate this
Contract in accordance with Clause 41.1.5.6 if, having discussed the matter with the
Service Provider, it is of the opinion that the actions of the Service Provider leading up to
the finding were sufficiently serious as to undermine its compliance with this Clause 25.
25.7
In the event that the Council does not exercise its right of termination under Clause 41
(Termination) the Service Provider shall discuss with the Council the appropriate steps the
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Service Provider needs to take to prevent repetition of the unlawful discrimination and
shall provide the Council with details of any such steps taken within a time limit specified
by the Council.
26.
HEALTH AND SAFETY
26.1
In relation to the Staff, the Service Provider shall at all times comply with the requirement
of the Health and Safety at Work Act 1974 and any other legislation or order pertaining to
the health and safety of employees and others who may be affected by the Service
Provider’s acts or omissions in providing the Services under this Contract.
26.2
The Service Provider shall comply with all health and safety requirements affecting the
Service Provider’s Premises and when working on any Council Premises and the
Council’s health and safety rules for Service Providers set out in Schedule 4 (The
Council’s Policy Statements), as appropriate. The Service Provider shall take full
responsibility for the adequacy and safety of all operations and methods adopted in the
performance of the Services and the acts of its Staff.
26.3
The Service Provider shall throughout the Contract Period have full regard for the safety
of all persons, including its Staff and shall keep any Council’s Premises it uses, the
Service Provider’s Premises, stores, the Council’s Equipment (so far as the same shall be
under its control) and the Service Provider’s Equipment in an orderly state appropriate to
the avoidance of danger to all persons, and shall provide and maintain at its own cost
adequate warning signs when and where necessary or required by the Council or by any
competent statutory or other authority for the protection or for the safety and convenience
of the public or others.
26.4
The Council reserves the right to suspend the provision of the Services in whole or in part
without paying compensation if and whenever the Service Provider is, in the reasonable
opinion of the Council, in contravention of the Health and Safety at Work Act 1974 and
provisions within this Clause 26.
27.
WHISTLEBLOWING
27.1
The Service Provider confirms that the Contract Manager is authorised as a person to
whom the Staff may make a qualifying disclosure under the Public Interest Disclosure Act
1998 (“PID Act”) and declares that any of its Staff making a protected disclosure (as
defined by PID Act) shall not be subjected to any detriment and the Staff will be made
aware of this provision. The Service Provider further declares that any provision in any
contract purporting to preclude a member of its Staff from making a protected disclosure is
void.
27.2
The Service Provider shall review its Whistleblowing policy and procedure on an annual
basis and shall reflect the Council’s Whistleblowing Procedure and Guidance.
28.
OBSERVANCE OF STATUTORY REQUIREMENTS
28.1
Without prejudice to the particularity of the foregoing or the particularity of the Clauses in
this Contract each of the Parties shall comply with all requirements of the Law to be
observed and performed in connection with the Services and a defaulting Party shall
indemnify the non-defaulting Party against all actions, claims, demand, proceedings,
damages, costs, charges and expenses whatsoever in respect of any breach by it or any
of its Staff of this Clause 28.The Service Provider shall notify the Council of any breach of
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any statutory or other provision relating in any way to the provision of or connected with
the Services.
28.2
The Council will consider any representation made by the Service Provider in relation to
this Clause. The Council reserves the right to suspend the provision of the Services in
whole or in part without paying compensation if and whenever the Service Provider is, in
the reasonable opinion of the Council, in contravention of the Law including those
provisions referred to in this Clause or at any time enacted or notified to the Service
Provider during the course of this Contract.
28.3
If the right reserved in Clause 28.2 is exercised then the Council may employ and pay a
Replacement Service Provider to provide the Services required and, where appropriate,
may recover from the Service Provider any additional costs in so doing.
Mental Capacity Act and Deprivation of Liberty Safeguards
28.4
In relation to the Mental Capacity Act 2005 (as amended) (“MCA”):
28.4.1
The Service Provider, including its Staff shall comply with the provisions set out in the
MCA when delivering Services.
28.4.2
The Service Provider shall have a clear written policy approved by the Council on its
approach to the MCA. The policy may be reviewed by the Council from time to time and
shall ensure that any reasonable amendments requested by the Council are incorporated
into its diversity policy within twenty one (21) Calendar Days of request by the Council.
28.4.3
All Staff must be trained at induction to follow the reporting procedures specified in the
policy and that training should be updated at least annually
28.4.4
The Service Provider shall notify the Council immediately where a Service User may lack
capacity and a Significant Decision is to be made.
28.5
In relation to the Deprivation of Liberty Safeguards:
28.5.1
The Service Provider shall have regard to the MCA Code of Practice including
the supplementary DoL Safeguards Code of Practice in its role as a Managing Authority.
28.5.2
The Service Provider shall have a clear written policy approved by the Council
and reviewed from time to time on its approach to the DoL, which includes but is not
limited to the following:
28.5.2.1 a clear procedure for the recording of information;
28.5.2.2 the process for applying for an Authorisation to the Council;
28.5.2.3 the process once a Authorisation request has been made;
28.5.3
The Service Provider shall appoint a lead contact to act on behalf of the
Service Provider for all purposes connected with the MCA and DoL. The Service
Provider shall notify the Council of the lead contact details prior to the Commencement
Date.
28.5.4
The Service Provider shall forthwith give notice in writing to the Council of any
change in the identity, address, e-mail and telephone numbers of the person
appointed as lead contact The Service Provider shall give maximum possible notice
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to the Council before changing its lead contact.
28.6
HEALTHWATCH
28.6.1 The Service Provider shall upon reasonable notice permit or procure permission for the
authorised representatives of the relevant Healthwatch to
have access to and observe
the carrying-on of activities on premises controlled by
that Service Provider and provide information to the Healthwatch.
Clause 28.6.1 shall not apply if:
28.6.1.1 the presence of the authorised representative on the premises or that part of
it would compromise the effective provision of care and support services or the
privacy or dignity of any person;
28.6.1.2 the authorised representative undertakes viewing or observation on the
premises which is not related to the function of Healthwatch;
28.6.1.3 it is in a non-communal part of the Service Provider’s Premises, is part of the Service
Provider’s Premises which is a Service User’s home or is used as accommodation by
employees;
28.6.1.4 a request is made to view an excluded activity;
28.6.1.5 the request applies to a part of the Service Provider’s Premises where care and support
services are not provided;
28.6.1.6 in the view of the Service Provider’s Premises the authorised representative is not
acting reasonably and proportionately, or
28.6.1.7 the authorised representative does not provide the Service Provider with
evidence that they are authorised in accordance with Regulation 4 of the Local
Involvement Networks (Duty of Service Providers to Allow Entry) Regulations
2008.
28.7
The Service Provider shall notify the Council within five (5) Working Days
after the inspection of any notices served by Healthwatch with respect to the
Service Provider, or their Staff.
29.
ENVIRONMENTAL REQUIREMENTS
29.1
The Service Provider shall when carrying out the Service and/or working on the Service
Provider’s Premises and/or Council Premises perform this Contract in accordance with
the Council's Environmental Policy, including a requirement to conserve energy, water,
wood, paper and other resources to reduce waste and phase out the use of ozone
depleting substances and minimise the release of greenhouse gases volatile organic
compounds and other substances damaging to health and the environment.
30.
HUMAN RIGHTS ACT 1998
30.1
In the performance of the Services the Service Provider shall comply with the Human
Rights Act 1998 as if it was a “Public Authority” within the meaning of the Human Rights
Act 1998.
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30.2
If a third party threatens or commences proceedings or complaint against the Council on
the grounds that there has been a breach of any person’s rights under the Human Rights
Act 1998 in connection with this Contract, the Service Provider shall use all reasonable
endeavours to co-operate with the Council so as to enable the Council:
30.2.1
to achieve the aim of successfully averting or defending the proceedings or complaint;
and/or
30.2.2
to comply with any order, judgment or direction made pursuant to the same by any duly
authorised authority.
30.3
The Council may additionally in its discretion determine such modifications to this Contract
as may be required to enable it to comply with the provisions of the Human Rights Act
1998 and the Service Provider shall forthwith comply with such modifications.
31.
CHANGE IN LAW
31.1
The Service Provider shall take all steps reasonably necessary to ensure that the
Services are performed in accordance with the terms of this Contract following any
Change in Law.
General Change in Law:
31.2
The Service Provider shall comply with any General Change in Law at the Service
Provider’s sole risk and cost.
Qualifying Change in Law
31.3
If a Qualifying Change in Law occurs or is shortly to occur, then either Party may write to
the other to express an opinion on its likely effects, giving details of its opinion of:
31.3.1
any necessary change in the Services and the Price of this Contract;
31.3.2
whether any changes are required to the terms of this Contract to deal with the Qualifying
Change in Law;
31.3.3
whether relief from compliance with the obligations is required, including the obligation of
the Service Provider to achieve the Commencement Date, milestones or to meet any
Service level requirements at any time.
31.4
As soon as practicable after any notification in accordance with Clause 31.3 the Parties
shall discuss and agree the matters referred to in that Clause and any way in which the
Service Provider shall provide evidence of how it can mitigate the effect of the Change in
Law, including:
31.4.1
providing evidence that the Service Provider has minimised any increase in costs or
maximised any reduction in costs, including in respect of the costs of its sub-contractor;
31.4.2
demonstrating that a foreseeable Qualifying Change in Law had been taken into account
by the Service Provider before it occurred;
31.4.3
giving evidence as to how the Qualifying Change in Law has affected the cost of providing
the Services; and
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31.4.4
demonstrating that any expenditure that has been avoided has been taken into account in
amending the Price.
31.5
Any increase in the Price, relief from the Service Provider’s obligations agreed by the
Parties or any change to the Contract required pursuant to this Clause 31 shall be
considered and implemented, if agreed, in accordance with Clause 14 (Variations and
Change Control).
32.
TRANSFER OF UNDERTAKINGS
32.11
TUPE Compliance on Termination
32.11.1 During the six (6) months prior to the Expiry Date or after the Council has given notice to
terminate this Contract and within twenty eight (28) Calendar Days of being so requested
to do so, the Service Provider shall fully and accurately disclose to the Council any and all
information in relation to all persons engaged in providing the Service including:
32.11.1.1 a list in electronic format of each employee employed by the Service Provider in
the provision of the Service including each employee’s start date;
32.11.1.2 a list of agency workers, agents and independent service providers engaged by
the Service Provider in the provision of the Service;
32.11.1.3 the total payroll bill (i.e. total taxable pay and allowances including employer’s
contributions to pension schemes) of each employee included in the list to be provided
under Clause 32.11.1.1; and
32.11.1.4 he terms and conditions of employment of each Transferring Employee; their
age and identity; the information that must be included in the employee's written statement
of employment particulars under s.1 of the Employment Rights Act 1996; information on
any disciplinary procedure taken in relation to the employee or grievance procedure taken
by the employee within the previous two (2) years in relation to which the ACAS code of
practice on disciplinary and grievance procedures applies; information on any Court or
tribunal claim brought by the employee against the transferor within the previous two (2)
years and any potential claim against the transferee arising out of the employee's
employment with the transferor; information about any collective agreements that will have
effect after the transfer in relation to the Transferring Employee.
32.11.2 During the twelve (12) months prior to Expiry Date or where notice to
terminate this Contract for whatever reason has been given, the Service Provider shall not
without the prior written consent of the Council unless bona fide in the ordinary course of
business:
32.11.2.1 vary or purport or promise to vary the terms and conditions of employment of
any
employee employed in connection with the Service;
32.11.2.2 materially increase or decrease the number of employees employed in
connection with the Service;
32.11.2.3 increase the remuneration of employees;
32.11.2.4 assign or re-deploy any employee employed in connection with the Service to
other duties unconnected with the Service; or
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32.11.2.5 otherwise improve terms and conditions of employment of any of its employees
without economic justification towards the Expiry Date with a view to discouraging other
potential bidders.
G.
INSURANCE AND INDEMNITY
33.
INSURANCE
33.1
Without prejudice to the general indemnity given at Clause 34 (Indemnity) and without
thereby limiting its responsibilities under this Clause 33 the Service Provider shall insure
with a reputable insurance company against any damage loss or injury which may occur
to any property or to any person by or arising out of or in consequence of the Service
Provider’s execution of its obligations under this Contract or in carrying out of this Contract
and shall take out and maintain the following insurance policies-:
Public Liability Insurance
33.1.1
Public liability insurance of a minimum of Five Million Pounds (£5,000,000) or such greater
sum as the Service Provider may choose in respect of any one incident.
Employers Liability Insurance
33.1.2
Employers Liability Insurance of a minimum of Ten Million Pounds (£10,000,000) or such
greater sum as the Service Provider may choose in respect of any one incident.
Professional Indemnity Insurance
33.1.3
Professional Indemnity Insurance in respect of the Service Provider’s obligations to
provide the Services with reasonable skill care and diligence in an amount of not less than
five million pounds (£5,000,000) for any one occurrence or a series of occurrences arising
out of any one event for a period of twelve (12) years from the completion date of this
Contract.
33.2
Should the Service Provider cease to be insured due to such insurance ceasing to be
available to service providers of the same profession or discipline the Council may but not
unreasonably or vexatiously without prejudice to any accrued rights or remedies under
this Contract terminate this Contract by notice in writing having immediate effect.
33.3
The Service Provider shall supply to the Council at the commencement of the Contract
forthwith and upon each renewal date of any relevant policy a certificate from its insurers or
brokers confirming that the Service Provider’s insurance policies comply with Clauses
33.1.1, 33.1.2 and 33.1.3.
34.
INDEMNITY
34.1
None of the Parties shall exclude or limit its own liability for:-
34.1.1 death or personal injury caused by its negligence, or that of its own personnel or staff
(including its employees, servants, suppliers, agents, volunteers and sub-contractors);
34.1.2 acts of fraud or fraudulent misrepresentation by it or its personnel or staff (including its
employees, servants, suppliers, agents, volunteers and sub-contractors); or
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34.1.3 breach of any obligations as to title implied by Section 12 of the Sale of Goods Act 1979 or
section 2 of the Supply of Goods and Services Act 1982.
34.2
The Service Provider shall be liable for and shall fully and promptly indemnify and keep
indemnified the Council, its employees and agents, (unless caused as a result of default or
negligence by the Council or the Council’s employees or agents) against all liabilities,
demands, proceedings, actions, damages, costs (including legal costs), losses, claims,
charges, expenses, consequential loss or damage and any other liabilities whatsoever in
any way arising out of or in connection with the Services and/or this Contract and including
but not limited to -:
34.2.1
any death or personal injury, loss of or damage to property, financial loss arising from any
advice given or omitted to be given by the Service Provider, or any other loss which is
caused directly or indirectly by any act or omission of the Service Provider;
34.2.2
the Service Provider's failure to provide all or any part of the Service in accordance with
the Contract or at all;
34.2.3
any breach by the Service Provider of any of the provisions of the Contract;
34.2.4
the use or occupation by the Service Provider of any of the Council’s Premises;
34.2.5
the use by the Service Provider of the Council’s Equipment;
34.2.6 any negligent, other tortious or fraudulent act or omission of, or breach of statutory duty by
the Service Provider.
34.3
The liability set out in Clause 34.2 shall, for the avoidance of doubt, include liability for third
parties employed in connection with the Services so far as the management of, or
instructions issued to, such third parties is the responsibility of the Service Provider.
H.
REMEDIES FOR POOR PERFORMANCE AND TERMINATION
35.
FORCE MAJEURE
35.1
No Party shall be entitled to bring a claim for a breach of obligations under this Contract
by the other Party, or incur any liability to the other Party for any losses or damages
incurred by that other Party to the extent that a Force Majeure Event occurs and it is
prevented from carrying out all or a material part of its obligations under this Contract by
that Force Majeure Event.
35.2
On the occurrence of a Force Majeure Event, the Affected Party shall notify the other
Party before the expiration of twenty-four (24) hours. Such notification shall include
details of the Force Majeure Event, including evidence of its effect on the obligations of
the Affected Party and any action proposed to mitigate its effect.
35.3
Within forty-eight (48) hours, the Parties shall consult with each other in good faith and
use all reasonable endeavours to agree appropriate terms to mitigate the effects of the
Force Majeure Event and facilitate the continued performance of this Contract.
35.4
If the Force Majeure continues for more than thirty (30) Calendar Days the Council may
terminate this Contract by giving thirty (30) Calendar Days’ written notice. Such
termination shall be without prejudice to the rights of the Parties in respect of any breach
of this Contract occurring prior to such termination.
35.5
This Clause 35 does not affect the Council's rights to terminate this Contract in
accordance with Clause 41 (Termination) in respect of any ground for termination which
does not arise from a delay in or failure of the Service Provider in the performance of its
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obligations under this Contract where such delay or failure has not arisen as a result of a
Force Majeure Event.
36.
INDUSTRIAL ACTION
36.1
The Service Provider shall give the maximum possible advance warning of prospective
industrial action and/or industrial dispute by its Staff likely to affect the performance of this
Contract adversely.
36.2
In the event that:
36.2.1
industrial action is taken by any Staff member such as that the provision of the Services
are, in the opinion of the Council, materially disrupted; or
36.2.2
action is taken by the Service Provider so as to prevent its Staff from providing the
Services, the Service Provider shall make every attempt to ensure its Staff continue to
provide the Services in accordance with the Contract. The occurrence of industrial action
by the Staff shall not relieve the Service Provider from any of its obligations set out in this
Contract. The Council reserves the right to make alternative arrangements for the
provision of the Services and to charge the Service Provider for any difference in resultant
cost including the cost of a Replacement Service Provider or terminate this Contract by
notice in writing to the Service Provider in accordance with Clause 41.1.4.1.
37.
BUSINESS CONTINUITY
37.1
The Parties shall agree no later than sixty (60) Working Days after the Commencement
Date a Business Continuity Plan which shall ensure that the Service Provider can restore
or regenerate full business activity in the event of an internal or external threat within a
reasonable period of time as specified by the Council.
37.2
The Business Continuity Plan shall contain but shall not be limited to timescales and
methods for ensuring business continuity in respect of a major failure of the Services or
any part thereof, as determined by the Contract Manager.
37.3
The Service Provider shall review and assess the Business Continuity Plan every twelve
(12) Months and produce a report to the Council of the success or failure. If the Council is
not satisfied with the Business Continuity Plan provided by the Service Provider, the
Council reserves the right to ask for the review and assessment to be repeated at the
Service Provider’s expense.
37.4
Any costs incurred in the preparation and implementation of the Business Continuity Plan
shall be the responsibility of the Service Provider.
38.
COMPLAINTS
38.1
The Service Provider shall ensure that it has a complaints procedure in place from the
Commencement Date in respect of complaints about the Services, which shall be
approved by the Council from time to time.
38.2
The Service Provider shall ensure that the information specified below is included in its
complaints procedure:
38.2.1
that the Service being provided is being provided on behalf of the Council;
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38.2.2
that in the event any Service User of the Services, or any member of the general public is
dissatisfied with the manner in which or the standard to which the Service is being
provided, they may (but only after exhausting the Service Provider’s complaints
procedure) make a formal complaint to the Contract Manager.
38.2.3
the address and telephone number of the Contract Manager. Suffolk County Council,
Adult & Community Services, Contract Manager, Endeavour House, 2 Russell Road,
Ipswich, IP1 2BX.
38.3
The Service Provider shall notify the Contract Manager within seven (7) Working Days if it
receives any complaints in relation to the Services with details of how the Service Provider
proposes to resolve the complaint. If the compliant is not resolved to the satisfaction of the
Contract Manager within the time specified by the Contract Manager, the Contract
Manager may take action in accordance with Clause 39 (Remedies for Poor
Performance).
39.
REMEDIES FOR POOR PERFORMANCE
39.1
If the Contract Manager informs the Service Provider’s Authorised Representative in
writing that the Council considers that any part of the Services provided do not meet the
requirements of this Contract or differ in any way from specified requirements, and this is
other than as a result of default or negligence on the part of the Council, and the breach or
failure to provide any all or any part of the Service is capable of remedy, the Service
Provider shall, at its own expense produce a plan of corrective action specifying
timescales for the plan of action to be put into place (the “Action Plan”).
39.2
If the Service Provider fails to produce the Action Plan within the time limit specified by the
Council or if there are any elements of the Action Plan that the Contract Manager
disagrees with then the Contract Manager shall specify amendments to the Action Plan
and the Service Provider shall pay to the Council the costs of preparation of any such
amendments made by the Council.
39.3
Approval of the Action Plan will be confirmed in writing by the Contract Manager to the
Service Provider’s Authorised Representative.
39.4
Improvements in performance will be monitored in accordance with the Action Plan by
each of the Parties.
39.5
If the Service Provider fails to satisfy the Council within the time limit specified by the
Council that the areas of concern raised in the Action Plan have been remedied then the
Council shall be entitled to terminate all or any part of this Contract by notifying the
Service Provider in writing of the problem and giving notice to terminate in thirty (30) days
from the date of the notice or in respect of the Service or any part of the Service and the
provisions of Clause 42 (Consequences of Termination) of this Contract shall apply.
39.6
The Council may at its sole discretion stop making new placement of Service Users with
the Service Provider until satisfactory resolution of the default in accordance with this
Clause 39.
39.7
Without prejudice to any other rights and remedies the Council may have pursuant to this
Contract the Service Provider shall reimburse the Council for all reasonable costs incurred
by the Council which have arisen as a consequence of the Service Provider’s delay in the
performance of its obligations under this Contract and which delay the Service Provider
has failed to remedy following reasonable notice from the Council.
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39.8
If the breach by the Service Provider or failure to provide all or any part of the Services is
not capable of remedy, as determined by the Contract Manager, it shall be dealt with in
accordance with Clause 41 (Termination Clause)
40.
DISPUTE RESOLUTION
40.1
The Parties shall each use reasonable endeavours to resolve any dispute by means of
prompt bona fide discussion first between the Contract Manager and the Service
Provider’s Authorised Representative. Failure to agree a settlement within three (3)
Working Days shall result in the dispute being escalated to both Parties managerial level
appropriate to the dispute in question. In the event that such a dispute is not resolved
within three (3) Working Days, thereafter it shall be escalated to each Parties appropriate
director for resolution. The respective directors shall meet within four (4) Working Days to
resolve the dispute. Failure to reach a settlement shall invoke the rest of this Clause 40.
40.2
Nothing in this Clause 40 shall prevent the Parties from seeking from any Court of the
competent jurisdiction an interim order restraining the other Party from doing any act or
compelling the other Party to do any act.
40.3
If the dispute cannot be resolved by the Parties pursuant to Clause 40.1 the dispute shall
be referred to mediation pursuant to the procedure set out in Clause 40.5 unless:
40.3.1
the Council considers that the dispute is not suitable for resolution by mediation; or
40.4.2
the Service Provider does not agree to mediation.
40.4
The performance of this Contract by the Service Provider shall not be suspended, cease
or be delayed by the reference of a dispute to mediation and the Service Provider and its
Staff shall comply fully with the requirements of this Contract at all times.
40.5
The procedure for mediation and consequential provisions relating to mediation are as
follows:
40.5.1
a neutral adviser or mediator (“the Mediator”) shall be chosen by agreement between the
Parties or, if they are unable to agree upon a Mediator within ten (10) Working Days after
a request by one Party to the other or if the Mediator agreed upon is unable or unwilling to
act, either Party shall within ten (10) Working Days from the date of the proposal to
appoint a Mediator or within ten (10) Working Days of notice to either Party that he/she is
unable or unwilling to act, apply to the Centre for Effective Dispute Resolution (“CEDR”) to
appoint a Mediator.
40.5.2
The Parties shall within ten (10) Working Days of the appointment of the Mediator meet
with him/her in order to agree a programme for the exchange of all relevant information
and the structure to be adopted for negotiations to be held. If considered appropriate, the
Parties may at any stage seek assistance from CEDR to provide guidance on a suitable
procedure.
40.5.3
Unless otherwise agreed, all negotiations connected with the dispute and any settlement
agreement relating to it shall be conducted in confidence and without prejudice to the
rights of the Parties in any future proceedings.
40.5.4
If the Parties reach agreement on the resolution of the dispute, the agreement shall be
confirmed in writing and shall be binding on the Parties once it is signed by their duly
authorised representatives.
40.5.5
Failing agreement, either of the Parties may invite the Mediator to provide a non-binding
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but informative opinion in writing. Such an opinion shall be provided on a without
prejudice basis and shall not be used in evidence in any proceedings relating to the
agreement without the prior written consent of both Parties.
40.5.6
If the Parties fail to reach agreement in the structured negotiations within sixty (60)
Working Days of the Mediator being appointed, or such longer period as may be agreed
by the Parties, then any dispute or difference between them may be referred to the
Courts.
40.6
Unless agreed otherwise in any mediation each Party shall bear its own costs of such
mediation.
41.
TERMINATION
41.1
The Council may by notice in writing with immediate effect (or at such later date as it may
specify) terminate this Contract in whole if any one of the events set out in this Clause
41.1 occurs -:
41.1.1
if the Service Provider breaches the provisions of Clause 23 (Bribery, Corruption,
Gratuities and Fraud);
41.1.2
NOT USED
41.1.3
NOT USED
41.1.4
if the Service Provider:41.1.4.1 ceases to carry on the whole or a substantial part of its business or disposes of
the whole
or a substantial part of its assets which in the reasonable opinion of the Council would
adversely affect the delivery of the Services;
41.1.4.2 the majority of shares carrying a right to vote in the Service Provider or its
Holding Company are acquired by a person who is not at the Commencement Date a
majority shareholder;
41.1.4.3 has an application made under the Insolvency Act 1986 in its respect to the Court
for the appointment of an administrative receiver;
41.1.4.4 has a winding-up order made or (except for the purposes of amalgamation or
reconstruction) a resolution for voluntary winding-up passed;
41.1.4.5 has a liquidator receiver or manager of its business or undertaking duly
appointed;
41.1.4.6 has an administrative receiver as defined in the Insolvency Act 1986 or the
Companies Act 2006 appointed;
41.1.4.7 has a proposal made for a voluntary arrangement for a composition in
satisfaction of debts or a scheme of arrangement of the Service Provider’s affairs
approved in accordance with the Insolvency Act 1986;
41.1.4.8 has possession taken by or on behalf of the holders of any debentures secured
by a floating charge of any property comprised in or subject to the floating charge;
41.1.4.9 is in circumstances which entitle the Court or a creditor to appoint or have
appointed a receiver a manager or administrative receiver or which entitles the Court to
make a winding-up order;
41.1.4.10 has an administration order made in respect of it;
41.1.4.11 the Service Provider undergoes a change of control, within the meaning of
section 450 of the Corporation Tax 2010, which in the opinion of the Council impacts
adversely and materially on the performance of this Contract.
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The Council at its sole discretion may appoint a Replacement Service Provider on the
same terms and conditions as this Contract as a result of corporate restructuring,
including takeover, merger, acquisition or insolvency of the Service Provider provided that
the Replacement Service Provider meets the pre-qualification criteria and the change in
service provider does not result in any other substantial amendments to the Contract.
41.1.5.1 fails to achieve at least 80% of the KPIs for a period of 3 consecutive Months or
in 5 or more Months in any rolling twelve (12) Month period;
41.1.5.2 fails to comply with any statutory duty or requirement in so far as such duty or
requirement affects or relates to the Services, including the loss of any statutory
licence or certification which is required for the performance of the Services or as
otherwise required by the Contract;
41.1.5.3 does anything which has the effect of putting the Council in breach of a statutory
duty or any licence held by the Council;
41.1.5.4 fails to comply with or breaches Clause 22 (Data Protection);
41.1.5.5 fails to comply with or breaches the safeguarding provisions of Clause 6;
41.1.5.6 fails to comply with or breaches Clause 25 (Equal Opportunities);
41.1.5.7 Not used
41.1.5.8 If at any time the Service Provider commits a Persistent Breach or Persistent
Breaches of any of the terms of this Contract, and where the Persistent Breach or
Persistent Breaches are capable of remedy but are not remedied by the Service
Provider in accordance with Clause 39 (Remedies for Poor Performance).
41.1.5.9 If at any time the Service Provider commits a substantial breach of any of the
terms of this Contract and the Contract Manager reasonably regards such a
breach as incapable of being remedied.
41.1.6
Not used
41.1.7
Termination where the Court Declares this Contract Ineffective
41.1.7.1 If for any reason the Court declares this Contract ineffective (or where the Court
sets this Contract aside) the Council shall pay to the Service Provider the sum equal to:
41.1.7.2 the reasonable costs incurred by the Service Provider during the procurement
(tender process) of this Contract;
41.1.7.3 the Price for Services already provided under this Contract from the
Commencement Date to the date of such declaration of ineffectiveness;
41.1.7.4 reasonable costs incurred by the Service Provider in assisting the Council to
prepare its defence to the claim of ineffectiveness brought against it;
41.1.7.5 the Council reserves its right to request the Service Provider to provide
documentary evidence to support its claim and mitigate its losses before any payments in
this Clause 41.1.7 is paid by the Council to the Service Provider.
41.1.7.6 For the avoidance of doubt Clause 41.1.7 is without prejudice to any other
remedies available to each of the Parties whether under this Contract or otherwise.
41.1.7.7 The sums paid to the Service Provider by the Council under Clause 41.1.7 above
shall be in full and final settlement of the Council’s liability for any loss and/or expense
incurred by the Service Provider as a result of the Court declaring this Contract ineffective.
41.1.7.8 If the declaration of ineffectiveness by the Court results in the termination of this
Contract, then the provisions of Clause 42 (Consequences of Termination) shall apply in
so far as they are compatible with the provisions of this Clause.
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41.1.7.9 Reference to the declaration of ineffectiveness under this Clause shall have the
meaning ascribed under the Public Contract Regulations 2006 (as amended).
41.1.8
If a notice to terminate is served by the Council under this Clause 41, the effective date
of the notice to terminate may be extended at the sole discretion of the Council to enable
all Service Users to be placed by the Service Provider in suitable alternative care
accommodation. The Service Provider shall ensure minimum disruption to Service Users
in the event that the Contract is terminated and shall use its best endeavours to support
the Council in placing Service Users in suitable alternative accommodation.
42.
CONSEQUENCES OF TERMINATION
42.1
If the Contract is terminated in accordance with Clause 41 (Termination) -:
42.1.1
the Service Provider shall forthwith cease to perform the Services;
42.1.2.1 the Service Provider shall pay in full and promptly the cost of providing the Service or
having the Service provided or any part thereof as would have been provided by the
Service Provider during the remainder of the Contract Period to the extent that such cost
exceeds such sums as would have been lawfully payable to the Service Provider for
providing the Services if the termination is due to an act, omission, default, negligence or
breach of the Service Provider or any of its Staff;
42.1.3
the Service Provider shall return all Personal Data or destroy or dispose of it in a secure
manner and in accordance with any specific instructions issued by the Council;
42.1.4
the cessation by the Service Provider of use of the Council’s Data and the handing over to
the Council of a complete and uncorrupted version of all Council Data and all records,
information, documents whosoever held including without limitation Service User records,
correspondence with Staff, the Council’s service departments, any Service Users and any
other relevant third party and anything else relating to the performance of the Services in
its possession custody or control either in its then current format or in a format nominated
by the Council (in which event the Council shall reimburse to the Service Provider the
Council’s reasonable data conversion expenses) whether such Council Data is on hard
copy or on a disk or on any computer systems.
42.2
If the Service Provider fails to comply with Clause 42.1, the Council may recover
possession thereof and the Service Provider grants a licence to the Council and its
authorised representatives to enter (for the purposes of such recovery) any of the Service
Provider’s Premises where any such items may be held.
42.3
the Service Provider shall at the sole option of the Council either return to the Council in an
agreed form, timescale and location as specified by the Council or destroy the Council’s
Data and all copies thereof as instructed by the Council.
42.4
If the Service Provider is unable or fails to provide the Services or any part thereof in
accordance with this Contract, the Council may itself provide or may employ and pay
other persons to provide the Services or any part thereof and all costs incurred thereby
may be deducted from any sums due to the Service Provider under the Contract or shall
be recoverable from the Service Provider by the Council as a debt. The Council's right
under this Clause 42.4 shall be without prejudice to any other rights or remedies which it
may possess.
42.5
The Council shall be entitled in respect of any loss or damage to the Council
resulting from or arising out of the termination of the Contract, to deduct the same from any
sum or sums which would but for Clause 41 (Termination) have been due from the Council
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to the Service Provider under the Contract or any other contract or be entitled to recover
the same for the Service Provider as a debt. Such loss or damage shall include the
reasonable costs to the Council of the time spent by its officers in terminating the Contract
and in making alternative arrangements for the provision of the Services or any part thereof
when the total costs, loss and/or damage resulting or arising out of the termination of the
Contract have been calculated and after taking into account any deduction made or to be
made by the Council from any sum or sums which would but for Clause 41(Termination)
have been due to the Service Provider, any balance shown as due to the Council shall be
recoverable as a debt or alternatively, the Council, subject to the Clause 9 (Recovery of
Sums Due), shall pay the Service Provider any balance due to the Service Provider;
42.6
The rights of the Council under this Clause 42 are in addition to and without
prejudice to any other rights or remedies the Council may have against the Service
Provider directly or pursuant to any guarantee and/or performance bond or indemnity.
42.7
Expiry or earlier termination of the Contract shall be without prejudice to the rights and
remedies of the Service Provider and the Council accrued before such termination or
expiration and nothing in the Contract shall prejudice the right of either such Party to
recover any amount outstanding at the termination or expiration.
42.8
Expiry or earlier termination of this Contract shall not effect the continuing rights and
obligations of the Parties under Clauses 1 (Definitions), 2 (Interpretation and Construction),
5 (Service Provider’s Warranty, Responsibility and Knowledge), 16 (Intellectual Property
Rights), 17 (Audit Rights), 20 (Freedom of Information), 21 (Confidentiality), 22 (Data
Protection), 23 (Bribery, Corruption and Fraud), 24 (Re-Use of Public Sector Information),
or under any other provision of this Contract that is expressed to survive expiry or
termination or is required to give effect to expiry or termination or the consequences of such
expiry or termination.
43.
EXIT AND HANDOVER ARRANGEMENTS
43.1
The Service Provider shall not charge the Council or any Replacement Service Provider for
any expenditure incurred howsoever in carrying out the handover arrangements as set out
in this Clause 43 on expiry or earlier termination.
43.2
The plan for the orderly handover of the Services to the Council or its Replacement Service
Providers following termination or expiry of this Contract shall include compliance by the
Service Provider of the provisions specified in Clause 42.
43.3
The Service Provider shall forthwith upon the request of the Contract Manager, supply to
the Council any information reasonably specified by the Council as being necessary for the
re-tendering of this Contract.
43.4
On giving written notice to the Service Provider and after twelve (12) months of the date of
the expiry or earlier termination of this Contract unless the individual is responding to a job
advert the Council shall have the right:
43.4.1
to offer any of the Staff who has previously been involved in performing the
Services employment or a contract for services with the Council and the Service Provider
agrees that if such person accepts such offer the Service Provider shall release such
person from any contractual restriction with it which such acceptance may otherwise
contravene;
43.4.2
to require the Service Provider to provide for a period of four (4) Months following the date
of expiry or termination such advice assistance and co-operation as the Council may
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reasonably require to enable the Council to provide the Services in-house or to procure
their provision by a Replacement Service Provider;
I.
GENERAL PROVISIONS
44.
NOTICES
44.1
Except as otherwise expressly provided within this Contract, no notice from one Party to the
other shall have any validity under this Contract unless made in writing by or on behalf of
the Party concerned.
44.2
Any notice which is to be given by either Party to the other shall be given by letter (sent by
hand, registered post or by the recorded delivery service) such letters shall be addressed to
the other Party in the manner referred to in Clause 44.3. Provided the notice is not returned
as undelivered, the notice shall be deemed to have been given two (2) Working Days after
the day on which the letter was hand delivered or posted or sooner where the Party
acknowledges receipt of such letters.
44.3
For the purposes of Clause 44.2, the address of each Party shall be as shown in Section 1,
Form of Agreement “Council” and “Service Provider”.
44.4
Either Party may change its address for service by serving a notice in accordance with this
Clause 44.
45.
LEGAL PROCEEDINGS
45.1
If requested to do so by the Contract Manager the Service Provider shall provide to the
Council within the timescale set by the Contract Manager any relevant information
(including but not limited to documents and statements from the Service Provider and/or its
Staff) in connection with any legal inquiry dispute resolution or Court proceedings in which
the Council may become involved or any relevant Council internal disciplinary hearing
arising out of the provision of the Services or the Service Provider’s presence on any of the
Council’s Premises and shall give evidence in such inquiries arbitration or proceedings or
hearings.
45.2
Where the Service Provider or any of its Staff become aware of any incident accident or
other matter which may give rise to a claim or legal proceedings in respect of the provision
or failure to provide the Services it shall notify the Contract Manager immediately in writing.
Such notification shall include all relevant information to enable the Contract Manager to
investigate the matter fully.
45.3
If requested to do so by one Party to the other Party, the other Party shall provide, at no
cost to the recipient, any relevant information in connection with any legal enquiry, relevant
disciplinary hearing, dispute resolution or Court proceedings in which it may become
involved arising out of the provision of the Services under this Contract. This Clause 45.3
shall not apply to disputes between the Council and the Service Provider, which shall be
dealt with in accordance with Clause 40 (Dispute Resolution).
45.4
The Service Provider shall indemnify and keep indemnified the Council against all and any
liabilities incurred by reason of the Service Provider’s failure to meet any timescale
specified in Law and/or any reasonable timescale specified by the Council in connection
with this Clause 45.
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46.
LOCAL GOVERNMENT OMBUDSMAN
46.1
In the event of a complaint to the Local Government Ombudsman involving activities the
subject of this Contract, the Service Provider shall at its own expense give to the Council
and to the Local Government Ombudsman every assistance in the investigation of the
complaint.
46.2
Where any investigation by the Local Government Ombudsman takes place the Service
Provider shall:
46.2.1 provide any information requested in the timescale specified;
46.2.2 attend any meetings as required and permit its Staff to attend;
46.2.3 promptly allow access to an investigation of any documents deemed to be relevant to the
investigation and/or the complaint;
46.2.4 allow itself and any Staff deemed to be relevant to be interviewed;
46.2.5 allow itself and any of its Staff to appear as witness in any ensuing proceedings; and
46.2.6 co-operate fully and promptly in every way required by the Local Government Ombudsman
during the course of that investigation.
46.3 Where any financial redress compensation or award is recommended by the Local
Government Ombudsman in the course of or following any investigation, or is agreed to by the
Council following a complaint to the Local Government Ombudsman, and which
investigation or complaint arises directly or indirectly out of the provision of the Services or
any other action or omission by the Service Provider and/or its Staff then the Council shall
be entitled to recover the cost of that financial redress compensation or award from the
Service Provider.
46.4
The Service Provider shall indemnify and keep indemnified the Council against all and any
liabilities incurred by reason of the Service Provider’s failure to meet any timescale
specified in Law and/or any reasonable timescale specified by the Council in connection
with this Clause 46.
47.
AGENCY
47.1
Neither the Service Provider nor its Staff shall in any circumstances hold itself or
themselves out as being the servant or agent of the Council otherwise than in
circumstances expressly permitted by this Contract.
47.2
Neither the Service Provider nor its Staff shall say or do anything that might lead any other
person to believe that the Service Provider is acting as the agent of the Council.
47.3
Nothing in this Contract shall impose any liability on the Council in respect of any liability
incurred by the Service Provider to any other person but this shall not be taken to exclude
or limit any liability of the Council to the Service Provider that may arise by virtue of either a
breach of this Contract caused by negligence of the Council and/or its staff.
48.
ENTIRE AGREEMENT
48.1
Except where expressly provided in this Contract this Contract constitutes the entire
agreement between the Parties in connection with its subject matter and supersedes all
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prior representations communications negotiations and understandings (whether oral or
written) concerning the subject matter of this Contract.
48.2
Nothing in this Clause 48 is intended to exclude or limit liability for any statement
representation or warranty made fraudulently or to any provision of this Contract which was
induced by fraud for which the remedies available shall be all those available under the law
governing this Contract.
49.
CONFLICT OF INTEREST
49.1
50.
50.1
The Service Provider shall take appropriate steps to ensure that neither it nor any of its
Staff are placed in a position where there is or may be an actual conflict or a potential
conflict between the pecuniary or personal interests of the Service Provider or such persons
and the duties owed to the Council under the provisions of this Contract. The Service
Provider will disclose to the Council full particulars of any such conflict of interest which may
arise and take all reasonable steps to remove any such conflict to the satisfaction of the
Contract Manager.
USE OF THE COUNCIL’S CREST OR LOGO
The Service Provider shall not use the Council’s crest either on its own or in combination
with the Service Provider’s crest or logo nor cause or permit it to be used.
51.
LIEN OR ENCUMBRANCE
51.1
The Service Provider will not create, or allow any other person to create, any lien or
encumbrance on any property belonging to the Council, the Council’s Equipment and/or on
the Council’s Premises.
52.
SEVERANCE
52.1
If any term condition or provision contained in this Contract shall be held to be invalid
unlawful or unenforceable to any extent such term condition or provision shall not affect the
validity legality or enforceability of the remaining parts of this Contract.
52.2
Pursuant to Clause 52.1, the Parties shall negotiate in good faith in order to agree the
terms of a mutually satisfactory provision to be substituted which as nearly as possible
validly gives effect to their intentions as expressed in this Contract.
52.3
The obligations of the Parties under any invalid, unlawful or unenforceable provision of this
Contract shall be suspended during the negotiations referred to in Clause 52.2. Failure to
agree on such provision as aforesaid within three (3) months of commencement of
negotiations shall entitle either Party to terminate this Contract.
53.
WAIVER
53.1
The failure of either Party to insist upon strict performance of any provision of this Contract
or the failure of either Party to exercise any right or remedy shall not constitute a waiver of
that right or remedy and shall not cause a diminution of the obligations established by this
Contract.
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53.2
No waiver shall be effective unless it is expressly stated to be a waiver and communicated
to the other Party in writing in accordance with the provisions of Clause 44 (Notices).
53.3
A waiver of any right or remedy arising from a breach of this Contract shall not constitute a
waiver of any right or remedy arising from any other or subsequent breach of this Contract.
54.
THE CONTRACT (RIGHTS OF THIRD PARTIES) ACT 1999
54.1
No person who is not a party to this Contract shall have any right to enforce any term of this
Contract, which expressly or by implication, confers a benefit on him without the prior
consent in writing of both Parties. This Clause does not affect any right or remedy of any
person which exists or is available otherwise than pursuant to the Contract (Rights of Third
Parties) Act 1999.
55.
LAW AND JURISDICTION
55.1
The Parties accept the exclusive jurisdiction of the English Courts and agree that the
Contract, and all non-contractual obligations and other matters arising from or connected
with the Contract, are to be governed and construed according to English Law.
J.
CONTRACT SPECIFIC CONDITIONS
56.
NOT USED
57.
SERVICE PROVIDER’S EQUIPMENT AND COUNCIL’S EQUIPMENT
57.1
The Service Provider shall be responsible for the provision and maintenance of the Service
Provider’s Equipment during the Contract Period.
57.2
The Service Provider shall be responsible for the security of the Service Provider’s
Equipment and the Council shall be under no liability in respect thereof including where the
Service Provider’s Equipment is used and/or stored on Council Premises save where any
damage or loss is caused to the Service Provider’s Equipment by the acts or omissions of
the Council.
57.3
The Service Provider shall ensure that any hired or leased equipment is clearly marked with
the name of the hirer or owner.
57.4
The Service Provider shall upon request made by the Contract Manager at any time in
relation to any item of Service Provider’s Equipment used in the provision of the Service,
forthwith notify Contract Manager in writing the name and address of the owner thereof.
57.5
Where in the opinion of the Council, any Service Provider’s Equipment used in the
performance of the Service does not comply with the requirements of this Contract, the
Council may serve on the Service Provider a notice in writing requiring the Service Provider
to remove such Service Provider’s Equipment within such time as may be specified in the
notice and to substitute proper and suitable Equipment.
57.6
The Council reserves the right to reject any Service Provider’s Equipment which, in the
opinion of the Council, will not achieve the standard of the Services or is unsafe.
57.7
The Service Provider shall maintain in a safe, serviceable and clean condition, all Service
Provider’s Equipment used in the provision of Service on the Service Provider’s Premises
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and/or Council’s Premises and on request shall allow the same to be inspected by the
Contract Manager.
57.8
The Service Provider shall keep all hazardous Service Provider’s Equipment and any
Council Equipment provided for use by the Service Provider under proper control and
safekeeping and shall ensure that all Service Provider’s Equipment and Council’s
Equipment is properly and clearly labelled.
57.9
Where adequate secure storage space is not provided by the Council at the Council’s
Premises, the Service Provider shall provide at its own expense, reasonable and suitable
storage for all Service Provider’s Equipment and Council’s Equipment. Such storage may
be provided on the Council Premises only with the consent of the Council, and in
accordance with any restrictions or requirements he may impose. If secure storage
facilities are not available on the Service Provider’s Premises or Council’s Premises (as
appropriate), the Service Provider shall ensure that all Service Provider’s Equipment and
Council’s Equipment are removed from the Service Provider’s Premises or Council’s
Premises (as appropriate) as soon as work there ceases.
57.10
The Service Provider must return all the Council’s Equipment to the Council on expiry or
earlier termination of the Contract.
58.
LIQUIDATED DAMAGES
58.1
Liquidated damages shall apply to the Contract and shall be calculated in accordance with
the liquidated damages provisions of Schedule 2 Performance Monitoring and KPI’s).
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